Samra v. Jones
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 9/5/2014. (KAM, )
2014 Sep-05 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MICHAEL BRANDON SAMRA,
CHERYL C. PRICE,
Warden, Donaldson Correctional
MEMORANDUM OF OPINION
Petitioner Michael Brandon Samra (“Samra”), now incarcerated at William E.
Donaldson Correctional Facility in Bessemer, Alabama, has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Samra challenges the validity of his 1998
capital murder conviction and death sentence on the following grounds:
Samra was denied his right to a fair and impartial jury under the
Sixth and Fourteenth Amendments to the United States
Constitution when the state trial court denied his motion for a
change of venue due to pretrial publicity;
Samra was denied his Sixth Amendment right to effective
assistance of trial and appellate counsel; and
Samra’s death sentence violates the Eighth and Fourteenth
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Amendments to the United States Constitution because his codefendant’s death sentence was vacated due to the fact that he
was less than eighteen years old at the time of the murders.
Upon thorough consideration of the entire record and the briefs submitted by
the parties, the Court finds that Samra’s petition for habeas relief is due to be denied.
THE OFFENSE CONDUCT
The evidence at trial established that on March 23, 1997, Samra, then aged 19,
and his friend Mark Anthony Duke (“Duke”), then aged 16, killed Duke’s father,
Randy Duke; Randy Duke’s girlfriend, Dedra Hunt; and Dedra Hunt’s two daughters,
six-year-old Chelisa Hunt and seven-year-old Chelsea Hunt. Samra and Duke
committed these murders pursuant to a plan hatched the day before, after Duke and
his father had a heated argument because Randy Duke would not allow Duke to use
Following the argument with his father, Duke told three of his
friends—Samra, David Collums, and Michael Ellison—that he wanted to kill his
father. According to a statement Samra later gave to police, the four friends then
obtained two handguns and began developing a plan to murder Randy Duke. Samra
stated that the plan included killing the other members of the household (Dedra Hunt
and her daughters) because Duke did not want to leave any witnesses alive. Having
established a plan, Samra and his three friends drove to Randy Duke’s house. Samra
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and Duke got out of the car and entered the house. Michael Ellison and David
Collums then left; however, they agreed to meet up with Duke and Samra later at a
After Samra and Duke entered the house, Duke killed his father by shooting
him with a .45 caliber pistol. Meanwhile, Samra aimed his gun at Dedra Hunt and
pulled the trigger. Although Samra shot Dedra Hunt in the face, she managed to flee
upstairs with her daughters. Dedra Hunt and her daughter Chelisa sought shelter in
an upstairs bathroom; Dedra Hunt’s other daughter, Chelsea, retreated to a bedroom
and attempted to hide under the bed. According to Samra’s statement to police, Duke
chased Dedra Hunt upstairs, kicked in the bathroom door, and shot Hunt, killing her.
Samra and Duke then killed Hunt’s two daughters. Because they ran out of bullets,
however, they used kitchen knives to kill the girls. After shooting Hunt in the
bathroom, Duke murdered six-year-old Chelisa, who was hiding behind the shower
curtain, by cutting her throat with a knife. Samra killed seven-year-old Chelsea, who
had been hiding under a bed. Despite her pleas for mercy, Duke held Chelsea down
and Samra cut her throat. Both girls died as a result of their throats being hacked with
a dull knife until, as the trial court found, they “drown[ed] in their own blood.”
Samra and Mark Duke emptied drawers and displaced items in the home to make it
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appear that the house had been burglarized; that, too, was part of the plan according
to Samra. They then left to dispose of the weapons. Upon being questioned by law
enforcement officials, Samra helped locate the weapons and made a statement in
which he admitted his involvement in the murders.
Samra was charged by indictment with capital murder of two or more persons
by one act or pursuant to one scheme or course of conduct, under Ala. Code § 13A-540(a)(10) (1975). Trial was held before Judge J. Michael Joiner of the Shelby County
Circuit Court (“the trial court”). Richard Bell (“Bell”), an experienced criminal
defense attorney who had handled numerous capital cases, was appointed to represent
Samra at trial and on appeal.
Prior to trial, Bell moved for an order requiring the State to provide him with
notice of the statutory aggravating circumstances set forth in Ala. Code § 13A-5-49
(1975) that the State intended to prove at sentencing that would make Samra eligible
for the death penalty. At oral argument on the motion, the prosecutor stated that he
was not required to provide such notice and stated that the “aggravating
circumstances are very straightforward in the indictment.” The trial court denied
Samra’s motion. Samra contends that it was not until the penalty phase of Samra’s
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trial that Bell was notified that the State would be attempting to prove the existence
of one aggravating circumstance in order to establish Samra’s eligibility for the death
penalty: that the capital offense was especially heinous, atrocious, or cruel when
compared to other capital offenses.
Bell also filed a motion for change of venue prior to trial, arguing that the media
coverage of the case led to undue prejudice against Samra in the makeup of the venire.
The trial court held a hearing on the motion, at which point Bell presented articles
from local newspapers and video recordings of portions of local newscasts that
covered Samra’s case. Bell also presented testimony from Dr. Natalie Davis, a media
and statistical expert. Dr. Davis had conducted a pre-trial poll of the citizens of Shelby
County to determine the extent of the pre-trial coverage by the media and its effect on
potential jury members. Bell requested that the trial court hold judgment on the
motion until after voir dire. The trial court ultimately denied Samra’s motion for a
change of venue.
In light of learning that the statement Samra had given to police recounting his
involvement in the murders would be admissible at trial, Bell focused on investigating
possible mitigating evidence. Bell decided that his two main areas of concern were to
investigate Samra’s mental condition and the degree of gang influence exerted upon
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Samra by Duke. Bell requested funds from the court for a mental health expert to
evaluate Samra. He did this on an ex parte basis, to protect the confidentiality of his
trial strategy. After researching different psychiatrists based on the recommendations
of nationally-known defense attorneys, Bell retained Dr. Charles L. Scott to evaluate
Samra and to serve as an expert in developing mitigating evidence relating to Samra’s
mental state. Bell described Dr. Scott as being “the most preeminent forensic
psychiatrist I have ever met.” In addition, he said that he settled on Dr. Scott because
he believed Dr. Scott was immune from being labeled a “defense-oriented” expert.
Dr. Scott performed a forensic psychiatric examination of Samra and wrote a 21-page
report detailing his findings. Dr. Scott’s report showed that Dr. Scott believed Samra
capable of committing a similar crime again; that Samra reported that he did not feel
bullied by Duke; that Samra understood that what he had done was wrong; and that
he acknowledged trying to cover up the crime. Dr. Scott also recommended that
Samra be subjected to “a complete neuropsychological evaluation, neurology
consultation and brain imaging (such as MRI or PET scanning).”1 Bell had an MRI
performed on Samra, but the findings were negative for any lesions or pathology. Bell
MRI is an acronym that stands for “magnetic resonance imaging.” PET is an acronym
that stands for “positron emission tomography.” A PET scan measures the rate at which
different parts of the brain metabolize glucose.
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inquired about the possibility of having a PET test performed, but after making
inquiries, was told that this kind of test was not available in Birmingham. At one
point, Bell prepared an affidavit for Dr. Scott’s signature that would have
accompanied a motion for funds. Although Dr. Scott’s report never recommends that
a SPECT scan be done, the affidavit requests funds for a SPECT scan and additional
neurological testing.2 However, the affidavit was never signed nor submitted to the
trial court. Bell contacted another expert about conducting neuropsychological
testing, but that did not work out for reasons he cannot remember. Bell ultimately
decided not to present Dr. Scott’s testimony at trial because it would have been
harmful to Samra’s defense.
Bell’s investigation also showed that Samra’s grades began to drop when he
started hanging out with a bad crowd and that Samra was kicked out of his house by
his father because he would not agree to go to a drug rehabilitation clinic. Bell also had
access to Samra’s school and medical records and to Samra’s family and friends who
provided details on Samra’s background. A forensic evaluation of Samra was also
done prior to trial, showing that Samra “fell within the Borderline range of
intelligence with a Full Scale IQ of 73.”
“SPECT” stands for “single photon emission computed tomography” and is a test that
is used to measure blood flow in the brain.
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Upon conclusion of his investigation, and without any evidence that Samra was
insane, Bell chose to base his mitigation argument upon the combination of gang
influence and Samra’s low IQ. Thus, at trial, Bell presented the testimony of Dr.
Kathleen Ronan, a clinical psychologist and certified forensic examiner who evaluated
Samra at Taylor Hardin Secure Medical Facility, and Dr. George Twente, a
psychiatrist who worked primarily with adolescents and had expertise concerning
gangs and their influence on young people. At the penalty phase, Bell presented
testimony from Samra’s family to show that Samra did not have a violent background
and that he was loved.
Dr. Ronan testified at trial that she found that Samra appeared to be functioning
within the borderline range of intelligence, meaning between low average intelligence
and mild mental retardation, which was consistent with the IQ test that he was given
during the previous week. On a personality inventory, Samra demonstrated that he
was dependent on others and that he was insecure in his interpersonal interactions.
Samra’s test responses also indicated that he could become confused under times of
severe stress. Dr. Ronan asked Samra whether he was affiliated with a gang, and he
told her he was affiliated with the FOLKS (“Forever Our Lord King Satan”) gang.
However, he stated that the murders had nothing to do with a gang, as far as he knew.
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On cross examination, Dr. Ronan testified that she found no evidence that Samra
suffered from a psychiatric impairment or mental disease that would have prevented
him from understanding right from wrong; that Samra was polite, cooperative, and did
not show a great deal of emotionality; and that the lack of emotionality could be
attributed to Samra simply not caring about the fact that the murders occurred.
Dr. Twente testified at trial that most of the adolescents he worked with who
were involved in gangs were from broken homes, did not do well in school, and felt
they did not fit in, and that the gang offered a sense of identity. He stated that he
reviewed the symbols that had been carved into Duke’s bedroom walls and stated that
they were similar to some he had seen in his work with adolescents involved with the
FOLKS gang. Finally, Dr. Twente testified that he had never spoken with Samra, and
he had not made any determination as to whether there was any gang involvement in
Bell also presented the testimony of Sara Woodruff at the trial. Woodruff
testified that she knew Samra and his co-defendants. She stated that she had been a
member of the FOLKS gang. Woodruff stated that Duke told her that the killings had
nothing to do with gangs or gang activity, and that they were the result of a dispute he
had with his father. The jury ultimately found Samra guilty of capital murder as
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charged in the indictment.
At the penalty phase, Bell presented three witnesses on Samra’s behalf. The
first witness was Theola Babe Samra, Samra’s aunt. She testified that she had known
Samra all of his life, that he was a loving person who had never displayed any violence,
and that there was nothing in his life that would have foretold any violent or deviant
behavior on her nephew’s part. The second witness was Charles Samra, Samra’s
father. He testified that Samra was several months behind in development as a child,
based on his own opinion from books he had read. He said that his son attended
regular classes at school, but did take some “special education” classes. He also said
that Samra, until the age of sixteen, was never a behavioral or disciplinary problem.
However, after Samra had completed his junior year in high school, he discovered that
this son was using marijuana, and after a few incidents involving marijuana use, and
after he attempted to assist Samra, he told Samra that he could seek professional help
to stop using marijuana, or he could leave the house. Samra chose to leave home and
dropped out of high school his senior year. Samra’s father testified that, based on the
way his son dressed, he suspected that he might be hanging around “gang-type
people,” but Samra denied this to him. Bell then called Sabrina Samra, Samra’s
mother. She testified that, during her child’s early years, there were no indications of
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violent tendencies on his part. She stated that Samra was easily frustrated and a little
slower than other children and that he was diagnosed with having learning disabilities.
After the penalty phase, the jury recommended that Samra be sentenced to
death by a 12-0 vote. The trial court followed the jury’s recommendation, finding the
existence of the statutory aggravating factor—that the crime was especially heinous,
atrocious, or cruel, when compared to other capital offenses—in it sentencing order:
Evidence showed at trial that the victims in this case were killed
in a very cruel and heinous manner. The minor children’s throats were
actually cut and according to testimony of the medical examiner, they
drowned in their own blood. The photographs and other demonstrative
evidence in this case leads to one and only one conclusion, that the
manner in which the victims were killed was much more heinous and
atrocious and cruel than would be necessary in any killing.
This case stands out as particularly heinous, atrocious and cruel
when it is considered that at least one victim, according to the admission
of Defendant, begged not to be killed. All of the victims died very painful
and brutal deaths. The victims apparently struggled for life and breath
and that very struggle caused one or more of the victims to drown in
their own blood.
(C.R. Vol. 49, at 5.)3 The trial court’s sentencing order also found the existence of six
References to the state court record are designated “C.R.” The Court will list any page
number associated with the court records by reference to the portable document format “pdf”
page number within the volume, as those numbers are the most readily discoverable for purposes
of expedient examination of that part of the record.
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Defendant’s lack of significant criminal history is a mitigating
circumstance, and that the age of Defendant at the time of the crime, that
is the age of nineteen(19) is a mitigating circumstance and that no other
statutory mitigating circumstances exist. . . the Court has considered all
additional mitigating circumstances supported by the evidence . . .
including but not limited to the age and maturity of Defendant, the
learning difficulties and disabilities of Defendant, the family history and
background and caring nature of Defendant, the effect of gang or group
involvement on Defendant, the immediate and continuing truthfulness
and cooperation of Defendant with law enforcement officers, the
remorse of Defendant expressed in statements to law enforcement
officers and, the fact that there are no other aggravating circumstances
other than the one listed . . .
(C.R. Vol. 49, at 3-4.) The trial court ultimately determined that the aggravating
circumstance outweighed the mitigating factors, and thus imposed the death sentence.
Bell continued to represent Samra on direct appeal4 and raised, among many
other issues, the claim that the motion for change of venue was erroneously denied.
On June 18, 1999, the Alabama Court of Criminal Appeals (“ACCA”) affirmed
Samra’s murder conviction and death sentence. Samra v. State, 771 So. 2d 1108 (Ala.
Crim. App. 1999). Samra’s application for re-hearing was denied on August 6, 1999.
The Alabama Supreme Court granted automatic certiorari and on March 3,
2000, affirmed Samra’s conviction and sentence. Ex parte Samra, 771 So. 2d 1122
Samra raised an ineffective assistance of trial counsel claim in a motion for new trial and
on direct appeal. The trial court appointed counsel other than Bell to raise that claim in the trial
court and to argue that claim on appeal.
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(Ala. 2000). On May 5, 2000, the Alabama Supreme Court denied Samra’s
application for rehearing.
Samra sought review from the United States Supreme Court, but on October
10, 2000, the United States Supreme Court denied Samra’s petition for writ of
certiorari. Samra v. Alabama, 531 U.S. 933 (2000).
On October 1, 2001, Samra filed a state post-conviction petition pursuant to
Rule 32 of the Alabama Rules of Criminal Procedure (“Rule 32 Petition”) in the
Shelby County Circuit Court (“Rule 32 Court”).
Samra claimed ineffective
assistance of trial and appellate counsel on multiple grounds. On all but one
claim—ineffective assistance of trial and appellate counsel for not investigating and
presenting evidence of Samra’s purported “brain damage and organic brain
dysfunction”—Samra conceded that an evidentiary hearing was unnecessary. On that
claim, an evidentiary hearing was held on November 3 through 5, 2003, in which
Samra’s post conviction counsel called three witnesses: Dr. Michael Gelbort, a
neuropsychologist who conducted a neuropsychological examination and evaluation
of Samra on February 3, 2002; Dr. James Mountz, a radiologist who conducted a
court-ordered SPECT brain scan on Samra on August 1, 2002; and Bell, Samra’s trial
and appellate counsel. The State also called witnesses at the hearing: Dr. Glen King,
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a clinical psychologist who conducted a neuropsychological test battery on Samra, and
Dr. Helen Mayberg, a board-certified neurologist employed at Emory University who
reviewed Dr. Mountz’s SPECT report.
Dr. Gelbort, who is not board certified by the American Board of Professional
Psychology, testified that the results of his tests showed that Samra had a verbal IQ of
79, nonverbal IQ of 87, and a full scale IQ of 81. Dr. Gelbort testified that he did not
perform the entire Halstead-Reitan Test Battery on Samra.
One of the
neuropsychological tests that Dr. Gelbort performed was the Categories Test which
measures “whole brain functioning” such as “conceptualization” and “reasoning.”
Dr. Gelbort found that Samra made 51 errors on this test and that this score placed
him in the bottom range of normal or the top range of the brain-impaired population.
Dr. Gelbort testified that a brain dysfunction can affect a particular ability and that
people with high IQ scores can overcome those dysfunctions while those with lower
IQ scores are less adaptive to overcoming those dysfunctions. Dr. Gelbort testified
that the variability of Samra’s IQ scores shows that there may be brain damage
because a normal brain will be consistent throughout, or that Samra is not doing his
best on the tests. Dr. Gelbort testified that Samra’s scores in the Trail Making Test,
which measures the subject’s speed and efficiency in processing information, were on
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the “cusp” between low-normal and mild impairment. Dr. Gelbort testified that
Samra’s score on the Wechsler Memory Scale was in the borderline-to-mildlyimpaired range. In the Minnesota Multiphasic Personality Inventory (“MMPI”), Dr.
Gelbort found that Samra showed signs of depression, but no other serious psychiatric
Dr. Gelbort opined that Samra’s brain is not normal; that Samra has some kind
of brain dysfunction that affects his verbal information processing; that Samra is less
able than normal people, although not grossly impaired, to use problem-solving skills
and judgment to modify his future behavior based on past experience; that Samra has
impaired frontal lobe activity; and, that Samra does not think fast on his feet and needs
a controlled environment. Dr. Gelbort reviewed the test results of radiologist Dr.
Mountz and found that his findings of low blood flow to the front and middle part of
Samra’s brain was consistent with the neuropsychological test results derived by Dr.
Dr. Gelbort candidly admitted that he only testifies on behalf of criminal
defendants and that he has testified approximately 50 times for criminal defendants.
Dr. Gelbort admitted that he had not asked Samra about the crime or read his
statement given to law enforcement. Counsel for the State confronted Dr. Gelbort
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with Samra’s school records and childhood medical records which Dr. Gelbort stated
he had reviewed. These records showed that Samra had some developmental delays
and a tremor at age seven, so his parents took him to a doctor who performed a CT
scan and EEG and found the results of those tests to be within the normal range.
School records showed where Samra had been in learning disability classes for speech
and language, but that he was no longer in those classes after the eighth or ninth grade
because these problems got better. Samra’s high school grades showed that he made
A’s, B’s, and C’s. Samra’s work history showed that he held several different jobs,
one of which required him to run a cash register. Further, the State showed on crossexamination that Dr. Gelbort gave zero points, rather than partial credit, for questions
when Samra substantially answered with an almost complete correct response. Dr.
Gelbort, even though testifying that the results he received on the tests he performed
were consistent with the results of the SPECT test performed on Samra by Dr.
Mountz, candidly admitted that he does not know what a SPECT test is measuring.
Dr. Mountz then testified about the results of the SPECT scan he performed
on Samra. He stated that an MRI looks for structural abnormalities in the brain, i.e.,
gray and white matter, which is different from measuring blood flow to the brain,
which is what the SPECT scan does. Dr. Mountz testified that a person may have a
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normal MRI result because there is no structural abnormality, but still have an
abnormal SPECT result because of reduced blood flow in the brain. Dr. Mountz
testified that the SPECT test was available in Birmingham in 1990.
In performing a SPECT scan on Samra, Dr. Mountz found two areas of his
brain that were receiving diminished blood flow. One of the abnormalities was so mild
that Dr. Mountz admitted it was still within the normal range. The second
abnormality showed decreased blood flow in the posterior frontal superior temporal
region of Samra’s brain; Dr. Mountz stated that it was on the low range of normal.
Dr. Mountz expressed no opinion on how this could affect Samra’s brain function, but
nevertheless stated that this result was not inconsistent with Dr. Gelbort’s finding of
On cross-examination, Dr. Mountz testified that there has been no research
methodology to show how a SPECT scan result can lead to drawing conclusions about
what compels a person to commit murder. Dr. Mountz further testified that this type
of brain scan is not relevant to showing whether Samra appreciated the wrongfulness
of his actions or whether he planned the murders or whether he tried to hide evidence
of the murders. Dr. Mountz testified that reading SPECT scans is a subjective
process where you compare the subject’s brain scan to that of other known normal
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scans; Dr. Mountz considers an “abnormal” result to be below one standard deviation
of the “normal” scans.
Dr. Mountz testified that the area of Samra’s brain that had low blood flow was
the area that is normally associated with motor functioning, sensation, perception, and
the inputting of visual information; further detailed testing would be required to see
what that exact area controls in Samra’s brain. Dr. Mountz added that Samra’s brain
may have looked different in 1998, the time when Samra committed the murder, from
how it looked at the time of the SPECT test in 2002. Further, Dr. Mountz testified
that he had no idea if Samra consumed caffeine, alcohol, drugs, or nicotine before the
test and that those items can affect the results.
Finally, Bell testified about his investigation into the possibility of Samra having
a mental defect. In discussing how he came to hire Dr. Scott, Bell testified that he
would not have hired an expert such as Dr. Gelbort because he always testified on
behalf of criminal defendants and has never testified for a prosecutor. Bell also
reviewed Dr. Scott’s report while testifying, and stated that Dr. Scott never
recommended a SPECT test be done but rather, that a PET test be performed.
The State then called Dr. King, who testified that he is board certified in clinical
psychology by the American Board of Professional Psychology, the only
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board-certification body recognized by the American Psychological Association, and
that he testifies in favor of criminal defendants approximately 40% of the time. Unlike
Dr. Gelbort who only performed part of the Halstead-Reitan Test Battery, Dr. King
performed the entire test battery on Samra. On the Wide Range Achievement Test,
3rd edition, Samra scored an 86 on reading, 97 on spelling, and 79 on math. Dr. King
explained that a person with an average IQ would be expected to score approximately
100 in each of those areas, but that the lower scores were expected because Samra was
a high school dropout; Dr. King also found that Samra exhibited good literacy skills.
In administering the MMPI test, Dr. King stated that Samra showed signs of mild
clinical depression, mild anxiety, and immature interpersonal development; but the
test detected no psychosis or serious mental illness. Dr. King testified that Samra’s
depression could affect his neuropsychological test scores because it could slow his
Dr. King testified that the result of Samra’s IQ testing—79—put Samra in the
low-average to high-borderline category. Dr. King testified that the performance part
of the IQ test is a sensitive measure for brain damage; however, Samra scored higher
on the performance part than the verbal part. Dr. King testified that Samra’s sensory
perception functioning was intact, but that he did have some fine motor difficulties.
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Dr. King testified that Samra had some signs of construction dyscrasia—a term
describing difficulty with copying designs—and trouble with arithmetic problems. Dr.
King also testified that Samra showed some impairment on the visual spatial test. Dr.
King testified that on the categories test, Samra made fifty-two errors. Dr. King
testified that he found some impairment overall in Samra’s level of abstract reasoning,
concept formation, and problem-solving abilities. According to Dr. King, however,
this level of impairment is consistent with a person who is in the borderline range of
Dr. King testified that Samra reported no prior mental health treatment, no
serious physical problems, that he did not recall ever having been rendered
unconscious; that Samra started drinking at age 17 and smoking marijuana at age 18;
that Samra had a stable family history; that Samra reported that he was not really in
a gang, but just hung out with a group of four friends; and that Samra appeared
remorseful. Dr. King testified that Samra understood the nature and quality of his
actions at the time of the crime and that he was not suffering from any mental illness
or defect that would have prevented him from such an understanding; Dr. King based
his opinion from the police reports and Samra’s rendition of the crime.
Based upon his examination, Dr. King found that Samra’s neuropsychological
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test scores showed a level of impairment consistent with a person who has an IQ score
in the borderline range of intellectual ability, but that this level of impairment did not
adversely affect Samra’s ability to appreciate the wrongfulness of his acts. Dr. King
further found that Samra’s adaptive functioning was higher than indicated by his test
scores because he could hold down jobs; although Samra quit several jobs, he did so
out of boredom and not out of a lack of ability. As a result, Dr. King classified Samra’s
adaptive functioning in the low-average range. Dr. King also testified that Samra’s
testing indicated no frontal lobe damage and that his overall level of functioning was
in the borderline range. Dr. King testified that at the time of the offense, Samra was
not suffering from any serious mental illness or mental defect that would render him
incapable of understanding the nature and quality of his actions and the consequences
of his behaviors.
Dr. Mayberg then testified that the SPECT scan had only been approved by the
federal government for the purposes of diagnosing stroke, evaluating patients for
dementia, and for identifying abnormalities in those known to have temporal lobe
epilepsy. Dr. Mayberg testified that the conditions of administering the test can affect
the result and that the analysis of the results is done by looking at it and comparing it
with others that are known to be normal. Dr. Mayberg testified that there are no fixed
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rules for reviewing SPECT results, but it was her opinion that Dr. Mountz’s use of
only twelve normal scans was not enough to establish a range of normal. Dr. Mayberg
testified that a larger control group was needed to establish the range of normal and
that a scan should not be considered abnormal unless it falls below two standards
deviations of the normal control group. Dr. Mountz had classified one part of Samra’s
brain as abnormal because the blood flow was one standard deviation below the range
of normal. According to Dr. Mayberg, defining those who fall below one standard
deviation from the normal as “abnormal” would classify many healthy people as
abnormal. Further, Dr. Mayberg testified that even though Samra’s SPECT scan
may have shown one area of the brain to receive a low-normal amount of blood flow,
such an indication of “low-normal” is still within the range of normal.
According to Dr. Mayberg, “brain damage” is a catch-all term and the SPECT
scan is too sensitive to minor blood flow variations to be a practical screening test.
Additionally, Dr. Mayberg stated that “brain damage does not have a singular
identifying pattern.” Depending upon the state of the person at the time of the
SPECT scan, blood flow levels can deviate amongst healthy subjects, especially if they
are anxious or did not have a good night of sleep. Dr. Mayberg testified that the
SPECT scan in 2002 does not reflect what Samra’s brain looked like at the time of the
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offense in 1997. Further, Dr. Mayberg testified that a SPECT or PET scan performed
one to two years after the commission of a crime should not be used as evidence of
what the defendant was thinking at the time of the offense.
Dr. Mayberg testified that she had reviewed Samra’s medical records which
indicated certain medical tests were performed during Samra’s childhood. According
to Dr. Mayberg, Samra’s parents took him to a childhood neurologist out of concern
that Samra was developmentally delayed. In her review of the medical records, Dr.
Mayberg stated that one neurologist thought that Samra might have a form of
childhood epilepsy, but that the second neurologist disagreed. Dr. Mayberg surmised
that Samra may have had some neurological deficits in childhood that improved over
time and that, because Samra was under the care of specialists, the condition would
have been followed if it had persisted. Because of the CT scans performed on Samra
as a child, the normal results of his MRI show that Samra’s brain has no old scars,
developmental anomalies, or acquired lesions.
Dr. Mayberg testified that the findings made by Dr. Scott, that Samra had
attention deficit disorder, alcohol abuse, cannibis abuse, and adult antisocial behavior
disorder, cannot be diagnosed by a SPECT scan. Dr. Mayberg testified that Dr.
Gelbort’s findings, that Samra has borderline intellectual functioning, reading
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disorders, and math disorders, cannot be diagnosed by a SPECT scan. Dr. Mayberg
testified that the area of reduced blood flow found by Dr. Mountz was in the motor
sensory cortex, which would have nothing to do with the neuropsychological deficits
found by Dr. Gelbort’s tests. Dr. Mayberg testified that Samra’s difficulty in not
performing the neuropsychological tests quickly could be attributed to his depression.
Dr. Mayberg concluded that Samra’s SPECT scan was normal because it did not fall
below two standard deviations from an established norm.
Following the evidentiary hearing, the Rule 32 Court ultimately denied Samra’s
Rule 32 Petition on January 12, 2005. Samra appealed, and on August 24, 2007, the
ACCA affirmed the Rule 32 Court’s denial of Samra’s Rule 32 Petition. Samra v.
State, 14 So. 3d 196 (Ala. Crim. App. 2007) (table decision). Samra filed an
application for a rehearing, but it was denied on September 28, 2007. Samra v. State,
CR-04-0879 (Ala. Crim. App. Sept. 28, 2007). Samra filed a petition for a writ of
certiorari in the Alabama Supreme Court, but it was denied on September 19, 2008.
Ex parte Samra, No. 1070068 (Ala. Sept. 19, 2008).
On September 27, 2007, Samra filed a second Rule 32 petition for postconviction relief in the Shelby County Circuit Court (“Successive Rule 32 Petition”).
At the time of this filing, his appeal from the denial of the first Rule 32 Petition was
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still pending in the ACCA, awaiting a ruling on his application for a rehearing. In the
Successive Rule 32 Petition, Samra argued that due to the fact that the death sentence
imposed on his more culpable co-defendant, Duke, had been reversed pursuant to
Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), Samra’s death sentence
violated his Eighth and Fourteenth Amendment rights and was excessive and
disproportionate.5 After hearing oral argument the State’s motion to dismiss the
Successive Rule 32 Petition, the Rule 32 Court granted the motion to dismiss and
summarily dismissed the Successive Rule 32 Petition in an order dated July 28, 2008.
Samra appealed that order on August 20, 2008. On August 29, 2008, the ACCA
issued an order directing the Rule 32 Court to set aside its order and hold the case in
Duke was 16 years old and Samra was 19 years old at the time of the murders. Samra
was sentenced to death in May 1998. Duke was sentenced to death in November 1998. On
March 1, 2005, the United States Supreme Court decided Roper, holding that the execution of
individuals who were under 18 years of age at the time of their capital crimes is prohibited by the
Eighth and Fourteenth Amendments. 543 U.S. at 575, 125 S. Ct. at 1198. Because Duke’s case
was pending on certiorari to the United States Supreme Court when the Roper decision was
released, the holding of the case applied to him. See United States v. Johnson, 457 U.S. 537, 545,
102 S. Ct. 2579, 2584 (1982) (“[A]ll defendants whose cases were still pending on direct appeal
at the time of the law-changing decision should be entitled to invoke the new rule.”). The
Supreme Court granted Duke’s petition for certiorari, vacated the judgment of the ACCA
upholding the death penalty for Duke, and remanded Duke’s case for further consideration in
light of Roper. See Duke v. Alabama, 544 U.S. 901, 125 S. Ct. 1588 (2005) (mem.). On remand,
the ACCA upheld Duke’s conviction but remanded for the Shelby County Circuit Court to set
aside Duke’s sentence of death and to re-sentence him to life imprisonment without the
possibility of parole, which is the only other sentence available for a defendant convicted of
capital murder, see Ala. Code § 13A-5-45(a)(1975). See Duke v. State, 922 So. 2d 179, 180-81 (Ala.
Crim. App. 2005). Duke’s death sentence was ultimately vacated on May 27, 2005.
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abeyance until a certificate of judgment was issued from the ACCA concerning
Samra’s still-pending appeal from his first Rule 32 Petition. Accordingly, the Rule 32
Court vacated its July 28, 2008 order and held Samra’s Successive Rule 32 Petition
in abeyance until the ACCA issued the certificate of judgment on the first Rule 32
Petition. Samra’s appeal from his first Rule 32 Petition became final when a certificate
of judgment was issued on September 19, 2008.
Once the stay was lifted on the Successive Rule 32 Petition, the State again
moved to dismiss it, and the Rule 32 Court summarily dismissed the successive
petition in an order dated September 19, 2011. The ACCA affirmed that dismissal on
August 10, 2012, and denied Samra’s application for rehearing. Samra filed a Petition
for Writ of Certiorari and Extraordinary Writ in the Supreme Court of Alabama.
These petitions were denied on September 20, 2013.
Samra filed the instant federal habeas corpus petition pursuant to § 2254 on
October 26, 2007, while his Successive Rule 32 Petition was still pending in the state
court. On the same date, Samra filed a motion to hold the instant petition in abeyance
to allow him to exhaust his claim in the state courts. This Court stayed the action
while Samra exhausted his state remedies, ordering monthly status reports.
After being apprised that Samra had exhausted his state remedies, on January
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23, 2014, this Court lifted the stay and issued an order setting deadlines for the filing
of briefs and an amended petition. In compliance with that order, Samra filed an
amended petition on February 21, 2014, to which the State responded and Samra
replied. The petition is now ripe for review.
STANDARDS OF FEDERAL HABEAS REVIEW
Because Samra filed his federal habeas corpus petition after April 24, 1996, this
action is governed by 28 U.S.C. § 2254, as amended by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See Guzman v. Sec’y, Dept. of
Corr., 663 F.3d 1336, 1345 (11th Cir. 2011). Pursuant to § 2254(a), a federal district
court is prohibited from entertaining a petition for writ of habeas corpus “in behalf of
a person in custody pursuant to the judgment of a State court” unless the petition
alleges “he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). In other words, this Court’s review of habeas
claims is limited to federal constitutional questions. Claims pertaining solely to “an
alleged defect in a [state] collateral proceeding” or to a “state’s interpretation of its
own laws or rules” do not provide a basis for federal habeas corpus relief under §
2254. Alston v. Dept. of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir. 2010) (quotation
marks and citations omitted).
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Exhaustion and Procedural Default
Under § 2254(b) and (c), a federal court must limit its grant of habeas
applications to cases where an applicant has exhausted his state remedies. Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). The purpose of this requirement is to ensure
that state courts are afforded the first opportunity to correct federal questions
affecting the validity of state court convictions. See Snowden v. Singletary, 135 F.3d
732, 735 (11th Cir. 1998); see also Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir.
1989) (“Federal courts are not forums in which to relitigate state trials.”) (citation
omitted)). Moreover, “to exhaust state remedies fully the petitioner must make the
state court aware that the claims asserted present federal constitutional issues. ‘It is
not enough that all the facts necessary to support the federal claim were before the
state courts or that a somewhat similar state-law claim was made.’” Snowden, 135 F.3d
at 735 (quoting Anderson v. Harless, 459 U.S. 4, 5-6, 103 S. Ct. 276, 277 (1982)).
“[A]n issue is exhausted if ‘the reasonable reader would understand the
claim’s particular legal basis and specific factual foundation’ to be the same as it was
presented in state court.” Pope v. Sec’y for Dept. of Corr., 680 F.3d 1271, 1286 (11th
Cir. 2012) (quoting Kelley v. Sec’y for Dept. of Corr., 377 F.3d 1317, 1344–45 (11th Cir.
2004)) (brackets in original omitted). If a petitioner fails to raise his federal claim to
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the state court at the time and in the manner dictated by the state’s procedural rules,
the state court can decide the claim is not entitled to a review on the merits, i.e., “the
petitioner will have procedurally defaulted on that claim.” Mason v. Allen, 605 F.3d
1114, 1119 (11th Cir. 2010). Moreover, “a state court’s rejection of a petitioner’s
constitutional claim on state procedural grounds will generally preclude any
subsequent federal habeas review of that claim.” Ward v. Hall, 592 F.3d 1144, 1156
(11th Cir. 2010) (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)).
“Where there has been one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the same claim rest upon the
same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594 (1991).
Yet as the Eleventh Circuit has noted, a claim will only be procedurally
defaulted in the following circumstance:
[A] state court’s rejection of a federal constitutional claim on procedural
grounds may only preclude federal review if the state procedural ruling
rests upon “adequate and independent” state grounds. Marek v.
Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995) (citation omitted).
We have “established a three-part test to enable us to determine when
a state court’s procedural ruling constitutes an independent and
adequate state rule of decision.” Judd, 250 F.3d at 1313. “First, the last
state court rendering a judgment in the case must clearly and expressly
state that it is relying on state procedural rules to resolve the federal
claim without reaching the merits of that claim.” Id. Second, the state
court’s decision must rest entirely on state law grounds and not be
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intertwined with an interpretation of federal law. See id. Third, the state
procedural rule must be adequate, i.e., firmly established and regularly
followed and not applied “in an arbitrary or unprecedented fashion.” Id.
Ward, 592 F.3d at 1156–57 (footnote omitted).
There are also instances where the doctrines of procedural default and
exhaustion intertwine. For instance, if a petitioner’s federal claim is unexhausted, a
district court will traditionally dismiss it without prejudice or stay the cause of action
to allow the petitioner to first avail himself of his state remedies. See Rose v. Lundy,
455 U.S. 509, 519-20, 102 S. Ct. 1198, 1204 (1982). But “if it is clear from state law
that any future attempts at exhaustion [in state court] would be futile” under the
state’s own procedural rules, a court can simply find that the claim is “procedurally
defaulted, even absent a state court determination to that effect.” Bailey v. Nagle, 172
F.3d 1299, 1305 (11th Cir. 1999) (citation omitted).
Exceptions to the Procedural Default Doctrine
“[A]n adequate and independent finding of procedural default will bar federal
habeas review of the federal claim, unless the habeas petitioner can show cause for the
default and prejudice attributable thereto, or demonstrate that failure to consider the
federal claim will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 749–50, 111 S. Ct. 2546, 2564-65 (1991) (citations and
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internal quotation marks omitted); see also Murray v. Carrier, 477 U.S. 478, 496, 106
S. Ct. 2639, 2649 (1986) (“[W]here a constitutional violation has probably resulted
in the conviction of one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural default.”).
The “cause and prejudice” exception is framed in the conjunctive, and a
petitioner must prove both cause and prejudice. To show cause, a petitioner must
prove that “some objective factor external to the defense impeded counsel’s efforts”
to raise the claim previously. Carrier, 477 U.S. at 488, 106 S. Ct. at 2645. Examples
of such objective factors include:
. . . interference by officials that makes compliance with the State’s
procedural rule impracticable, and a showing that the factual or legal
basis for a claim was not reasonably available to counsel. In addition,
constitutionally ineffective assistance of counsel . . . is cause. Attorney
error short of ineffective assistance of counsel, however, does not
constitute cause and will not excuse a procedural default.
McCleskey v. Zant, 499 U.S. 467, 493–94 , 111 S. Ct. 1454, 1470 (1991) (internal
quotation marks and citations omitted). As for prejudice, a habeas petitioner must
show “not merely that the errors . . . created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct.
1584, 1596 (1982) (emphasis in original).
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A petitioner may also escape a procedural default bar if he “can demonstrate
a sufficient probability that [the court’s] failure to review his federal claim will result
in a fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451, 120
S. Ct. 1587, 1591 (2000). To make such a showing, a petitioner must establish that
either: (1) “a constitutional violation has probably resulted in the conviction of one
who is actually innocent,” Smith v. Murray, 477 U.S. 527, 537–38, 106 S. Ct. 2661,
2668 (1986) (quoting Carrier, 477 U.S. at 496, 106 S. Ct. at 2650), or (2) the petitioner
shows “by clear and convincing evidence that but for a constitutional error, no
reasonable juror would have found the petitioner eligible for the death penalty.”
Schlup v. Delo, 513 U.S. 298, 323, 115 S. Ct. 851, 865 (1995) (emphasis in original)
(quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S. Ct. 2514, 2517 (1992)).
AEDPA Review of State Court Decisions Under § 2254(d)
Because most of the claims upon which Samra seeks habeas relief under § 2254
were adjudicated on the merits in state courts, this Court is restricted in its ability to
grant relief on those claims by § 2254(d). The AEDPA “imposes a highly deferential
standard for evaluating state-court rulings” and “demands that state-court decisions
be given the benefit of the doubt.” Guzman, 663 F.3d at 1345 (internal quotation
marks and citation omitted). To grant Samra’s habeas petition, this Court must not
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only find that his constitutional claims are meritorious, but also that the state court’s
resolution of those claims:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
28 U.S.C. § 2254(d)(1)-(2); see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir. 2010)
(quoting § 2254(d)). The burden of showing that an issue falls within § 2254(d)(1) or
(d)(2) is upon the petitioner. See Woodford v. Visciotti, 537 U.S. 19, 25, 123 S. Ct. 357,
360 (2002). Section 2254(d)(1)’s “contrary to” and “unreasonable application of”
clauses have independent meanings. See Alderman v. Terry, 468 F.3d 775, 791 (11th
Cir. 2006) (“[T]he ‘contrary to’ and ‘unreasonable application’ clauses are
interpreted as independent statutory modes of analysis.”) (citation omitted). A state
court’s decision is contrary to “clearly established precedents [of the Supreme Court
of the United States] if it applies a rule that contradicts the governing law set forth in
[the Court’s] cases, or if it confronts a set of facts that is materially indistinguishable
from a decision of th[e] Court but reaches a different result.” Brown v. Payton, 544
U.S. 133, 141, 125 S. Ct. 1432, 1438 (2005) (citation omitted). On the other hand, to
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determine whether a state court’s decision is an “unreasonable application” of clearly
established federal law, the Supreme Court has stated:
The pivotal question is whether the state court’s application of the
[relevant constitutional] standard was unreasonable . . . For purposes of
§ 2254(d)(1), an unreasonable application of federal law is different from
an incorrect application of federal law. A state court must be granted a
deference and latitude that are not in operation when the case involves
review under the [relevant constitutional] standard itself.
A state court’s determination that a claim lacks merits precludes federal
habeas relief so long as “fairminded jurists could disagree” on the
correctness of the state court’s decision. And as the [Supreme Court]
has explained, evaluating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case
Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785-86 (2011) (citation and
quotation marks omitted) (emphasis in original); see also Schriro v. Landrigan, 550 U.S.
465, 473, 127 S. Ct. 1933, 1939 (2007) (“The question under the AEDPA is not
whether a federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable—a substantially higher threshold.”);
Guzman, 663 F.3d at 1346 (“Ultimately, before a federal court may grant habeas relief
under § 2254(d), ‘a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
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fairminded disagreement.’”) (quoting Harrington, 131 S. Ct. at 786-77).6
De Novo Review When the State Courts Fail to Resolve the Merits
of a Claim Adequately Raised
When a state court does not resolve the merits of a claim that has been
adequately presented to it by a petitioner, § 2254(d)(1)’s requirement that the federal
court defer to state court decisions that are not contrary to, or an unreasonable
application of, clearly established federal law, does not apply. As explained by the
As the Florida courts failed to resolve the merits of Davis’s claim, the
present controversy falls outside of § 2254(d)(1)’s requirement that we
defer to state court decisions that are not contrary to, or an unreasonable
application of, clearly established federal law. See [28 U.S.C. §
2254(d)(1)]; Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2542, 156
L. Ed.2d 471 (2003) (When a state court denies relief by making an
unreasonable application of the first prong of the test for ineffective
assistance of counsel and thus never reaches the second prong,
application of the second prong in federal habeas proceedings is de
novo.); Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1254 (11th
Cir. 2002) (interpreting § 2254(d)(1)’s requirement of deference with
respect to federal claims “adjudicated on the merits in State court
proceedings” (internal quotation marks omitted)), cert. denied, 538 U.S.
906, 123 S. Ct. 1511, 155 L. Ed. 2d 225 (2003).
It is also worth noting that a state court’s factual determination is entitled to a
presumption of correctness under § 2254(e)(1)). And commensurate with the deference
accorded to a state court’s factual findings, “the petitioner must rebut ‘the presumption of
correctness [of a state court’s factual findings] by clear and convincing evidence.’” Ward, 592
F.3d at 1155-56 (alterations in original) (quoting § 2254(e)(1)). However, Samra states that he is
not attempting to submit any new evidence in this federal habeas proceeding, so § 2254(e)(1) is
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Davis v. Sec’y for Dept. of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003) (per
curiam). Under these circumstances, this Court’s review of such a claim
is de novo. See id.
The court now turns to Samra’s constitutional claims with these principles in
Samra’s claim that he was denied his right to a fair and impartial
jury under the Sixth and Fourteenth Amendments when the trial
court denied his motion for a change of venue
Samra’s first claim is that the trial court’s denial of his motion for a change of
venue on grounds of prejudicial pretrial publicity deprived him of an impartial jury and
a fair trial. Samra raised this claim on direct appeal before the ACCA, and the ACCA
denied it on the merits. See Samra, 771 So. 2d at 1113-16. At the time, the Alabama
Supreme Court automatically granted certiorari review, but the Court did not
comment further on the venue issue and only made a general statement of affirmance.
See Ex Parte Samra, 771 So. 2d at 1122 (“We have found no error in either the guilt
phase of the trial or the sentencing phase of the trial that adversely affected the
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Because the ACCA’s determination was on the merits, the claim is subject to
AEDPA review by this Court. See 28 U.S.C. § 2254(d). Samra contends that the
ACCA’s decision is contrary to, or involved an unreasonable application of, the
United States Supreme Court’s decisions on prejudicial pretrial publicity, particularly
Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507 (1966), Rideau v. Louisiana, 373 U.S.
723, 83 S. Ct. 1417 (1963), Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639 (1961), and
Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031 (1975). He also argues that the
decision involved an unreasonable application of the facts in light of the evidence in
the record because the ACCA failed to consider the “totality of the circumstances”
of Samra’s case and the surrounding media attention.
In analyzing whether a defendant’s trial was deprived of fundamental fairness
by pretrial publicity or an inflamed community atmosphere, courts consider both an
“actual prejudice” standard and a “presumed prejudice” standard. See Coleman v.
Zant, 708 F.2d 541, 544 (11th Cir. 1983) (citing Irvin, Sheppard, Rideau, and Murphy,
supra). On direct appeal, the ACCA addressed both standards, stating: “‘In
connection with pretrial publicity, there are two situations which mandate a change
of venue: 1) when the accused has demonstrated “actual prejudice” against him on
the part of the jurors; 2) when there is “presumed prejudice” resulting from
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community saturation with such prejudicial pretrial publicity that no impartial jury can
be selected.’” Samra, 771 So. 2d at 1113 (quoting Hunt v. State, 642 So.2d 999,
1042–43 (Ala. Crim. App. 1993) (citing, in turn, Sheppard, Rideau, and Coleman,
The ACCA first discussed presumed prejudice, noting that under Sheppard and
Rideau, Samra had to meet the “heavy burden” of establishing “1) that the pretrial
publicity is sufficiently prejudicial and inflammatory and 2) that the prejudicial pretrial
publicity saturated the community where the trials were held.” Id. at 1114-15. The
ACCA held that Samra failed to meet this burden:
In support of his motion for a change of venue, [Samra]
introduced testimony concerning a telephone poll of 305 Shelby County
citizens about the case. Of the people responding to the poll, 83.9
percent indicated that they had heard of the case. Of the 83.9 percent
who had heard of the case, 20 percent indicated that they thought
[Samra] was guilty, 6.6 percent thought [Samra] was probably guilty, 2.3
percent thought [Samra] was probably not guilty, and 5.9 percent
thought [Samra] was not guilty. However, a majority, 65.2 percent, were
uncertain as to [Samra’s] guilt at that time. Also, the people conducting
the poll did not ask the respondents whether they could set aside what
they had heard about the case and decide it based solely on the evidence
presented in court. [Samra] also introduced numerous newspaper
articles from local newspapers and portions of newscasts by local
television stations covering the case from its inception through the trial,
including information as to the area covered by the media.
Although [Samra] presented evidence that indicated that many of
the citizens of Shelby County had heard about the case through the
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media, he has not shown that the information presented by the media
was prejudicial. We have examined the media materials presented to the
trial court, and we find that most of the reports were factual and
relatively objective rather than accusatory, inflammatory, or sensational.
Therefore, we conclude that the materials did not contain prejudicial
information. Further, [Samra] did not prove that the media attention
inflamed or saturated the community so that there was an emotional tide
against him. Thus, he has not shown that the pretrial publicity in this
case was so inherently or presumptively prejudicial as to constitute one
of those “extreme situations” that warrant a presumption of prejudice
from pretrial publicity.
Id. at 1115.
The ACCA next evaluated whether the jury was actually prejudiced against
Samra, noting that to establish actual prejudice under Irvin, supra, Samra must show
that “one or more jurors who decided the case entertained an opinion, before hearing
the evidence adduced at trial, that the defendant was guilty” and that “these jurors
. . . could not have laid aside these preformed opinions and rendered a verdict based
on the evidence presented in court.” Id. (citation and internal quotation marks
omitted) (brackets in original omitted). The ACCA held that Samra had not
established actual prejudice:
[Samra] has not shown any actual prejudice resulting from the
pretrial publicity. Through the use of a jury questionnaire and individual
voir dire, the trial court and the attorneys extensively questioned the
veniremembers about their knowledge about the case and any effect
pretrial publicity may have had on their ability to be fair and impartial.
Many of the veniremembers were familiar with the facts of, and the
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circumstances surrounding, this offense. However, only three indicated
that they were biased against [Samra] based on information they obtained
from the media, and the trial court excused those veniremembers for
cause. The remainder of the jurors who had become familiar with the
case through the media indicated, upon further questioning, that they
could set aside anything they had read or heard about the case and render
a fair and impartial verdict based solely upon the evidence presented at
trial. In denying [Samra’s] motion, the trial court specifically stated:
“With that said, the court will deny the motion for
change of venue. Specifically, the court finds the best
standard by which to measure that question or that issue is
the standard of the statement of the jurors. We have had 70
some-odd jurors who have told us that they can decide this
without regard to what they may have seen or heard.
There is no evidence from which the court can infer
that any of those jurors are being anything other than
completely truthful. And, in fact, the court finds that there
is a basis to infer that they are being truthful.
With that sai\d, the motion for change of venue is
(R. 1391–92.) Thus, [Samra] has not shown that any of the jurors were
actually prejudiced against him.
Id. at 1116.
Nothing in the ACCA’s decision is contrary to, or involved an unreasonable
application of, clearly established federal law. Samra’s invocation of the Supreme
Court’s landmark cases on prejudicial pretrial publicity falls short, as it was not
unreasonable for the ACCA to conclude that the evidence of trial publicity in this case
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did not rise to the level of the “carnival atmosphere” discussed in Sheppard, 384 U.S.
at 354, 86 S. Ct. at 1518 (“For months the virulent publicity about Sheppard and the
murder had made the case notorious. Charges and countercharges were aired in the
news media besides those for which Sheppard was called to trial. In addition, only
three months before trial, Sheppard was examined for more than five hours without
counsel during a three-day inquest which ended in a public brawl. The inquest was
televised live from a high school gymnasium seating hundreds of people.”); Rideau,
373 U.S. at 725-27, 83 S. Ct. at 1418-20 (describing as a “spectacle” the fact that
“[w]hat the people of Calcasieu Parish saw on their television sets was Rideau [the
defendant], in jail, flanked by the sheriff and two state troopers, admitting in detail the
commission of the robbery, kidnapping, and murder, in response to leading questions
by the sheriff” and thus deciding not to examine the voir dire for actual prejudice
because the trial was but a “hollow formality”); or Irvin, 366 U.S. at 727, 81 S. Ct. at
1645 (“An examination of the 2,783–page voir dire record shows that 370 prospective
jurors or almost 90% of those examined on point . . . entertained some opinion as to
guilt—ranging in intensity from mere suspicion to absolute certainty . . . . A number
admitted that, if they were in the accused’s place in the dock and he in theirs on the
jury with their opinions, they would not want him on the jury. . . . [O]f the voir dire
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examination of a majority of the jurors finally placed in the jury box[,] [e]ight out of
the 12 thought petitioner was guilty.”).
Nor was the ACCA’s decision based on an unreasonable determination of the
facts in light of the evidence presented. In support of his argument that presumed
prejudice existed, Samra argues that the articles from local newspapers, portions of
video newscasts covering Samra’s case, and the statistical evidence provided by Dr.
Davis should have demonstrated to the state courts that an overwhelming number of
prospective jurors believed Samra to be guilty before they were even empaneled. With
regard to Dr. Davis’s poll establishing the existence of presumed prejudice, none of
the individuals polled were asked whether they could set aside any preconceived
notions and decide the case based only on the evidence before them. With regard to
the media exhibits, this Court has examined them and agrees with the ACCA that they
are largely objective in nature rather than inflammatory or prejudicial. “The fact that
a case generates widespread publicity does not, in and of itself, warrant a change of
venue.” Baldwin v. Johnson, 152 F.3d 1304, 1314 (11th Cir. 1998). Indeed, “the
principle of presumed prejudice ‘is rarely applicable and reserved for extreme
situations.’” Mills v. Singletary, 63 F.3d 999, 1010 (11th Cir. 1995) (citation omitted).
The Supreme Court has recently explained that in each of its cases where it
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overturned a conviction due to a presumption of prejudice from pretrial publicity,
those “‘conviction[s] [had been] obtained in a trial atmosphere that was utterly
corrupted by press coverage.’” Skilling v. United States, 561 U.S. 358, 380, 130 S. Ct.
2896, 2914 (2010) (citation omitted) (alteration in original omitted). The Court
reiterated that those decisions, however, “‘cannot be made to stand for the
proposition that juror exposure to . . . news accounts of the crime . . . alone
presumptively deprives the defendant of due process.’” Id. (citation omitted); see also
Murphy, 421 U.S. at 800 n.4, 95 S. Ct. at 2036 n.4 (distinguishing “largely factual
publicity from that which is invidious or inflammatory,” and noting that “[t]o ignore
the real differences in the potential for prejudice would not advance the cause of
fundamental fairness, but only make impossible the timely prosecution of persons who
are well known in the community . . . .”). Samra emphasizes that the District
Attorney was quoted in news articles stating that he would pursue the death penalty
because of the horrific nature of the crime. This fact does not show that the nature of
the publicity was inflammatory, so as to lodge this case within the narrow band of
“extreme situations” where prejudice may be presumed. See Gaskin v. Sec’y, Dept.
of Corr., 494 F.3d 997, 1005 (11thCir. 2007) (no habeas error in denial of petitioner’s
motion for change of venue, even though articles published in local paper “may have
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been somewhat prejudicial or inflammatory”).
The Court also finds that the ACCA’s conclusion that no actual prejudice
existed was not unreasonable in light of the evidence before the state courts. The
record reveals that the voir dire proceedings were extensive. The trial court granted
Samra’s request to have the venire members complete questionnaires. Questioning
of the potential jurors lasted four days. The trial court questioned each juror
individually about any opinion the juror had of the death penalty, and any knowledge
the juror might have had of the facts of the case. Counsel for Samra and for the State
were then allowed to question each potential juror. Many of the prospective jurors
stated that they had heard something about the murders when they occurred one year
earlier, but many did not remember details of the crime. Importantly, despite some
being familiar with the media coverage of the case, none of the actual jury members
stated that they could not render a verdict based solely on the evidence before them.
As discussed by the Supreme Court, such a fact precludes a finding of actual
To hold that the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is sufficient to rebut the
presumption of a prospective jurors’ impartiality would be to establish
an impossible standard. It is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the evidence
presented in court.
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Irvin, 366 U.S. at 723, 81 S. Ct. at 1642-43; see also Murphy, 421 U.S. at 799-800, 95
S. Ct. at 2036 (“Qualified jurors need not [ ] be totally ignorant of the facts and issued
involved.”). Here, as in Murphy, “[t]he voir dire . . . indicates no such hostility to
petitioner by the jurors who served in his trial as to suggest a partiality that could not
be laid aside.” 421 U.S. at 800, 95 S. Ct. at 2036.
Accordingly, habeas relief is unavailable with regard to this claim because the
state courts’ treatment of the change of venue issue is not contrary to, or an
unreasonable application of, Supreme Court precedent; nor was it an unreasonable
determination of the facts based on the evidence before it. See 28 U.S.C. § 2254(d).
Samra’s claim that he was denied his Sixth Amendment right to
effective assistance of trial and appellate counsel
Samra’s second claim is that Bell’s performance was constitutionally ineffective
for various reasons. Before addressing these claims, a discussion of the general
standard for ineffective assistance of counsel claims is warranted.
General Standard for Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme
Court established the following two-pronged standard for judging, under the Sixth
Amendment, the effectiveness of attorneys who represent criminal defendants at trial
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or on direct appeal:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Id. at 687, 104 S. Ct. at 2064 .
Because Strickland’s preceding two-part test is clearly framed in the
conjunctive, a petitioner bears the burden of proving both “deficient performance”
and “prejudice” by “a preponderance of competent evidence.” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc); see also Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must be satisfied in
order to show a violation of the Sixth Amendment, the court need not address the
performance prong if the defendant cannot meet the prejudice prong, [ ] or vice
versa.”). Further, when assessing ineffective assistance of counsel claims:
[I]t is important to keep in mind that in addition to the deference to
counsel’s performance mandated by Strickland, the AEDPA adds
another layer of deference—this one to a State court’s decision—when
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we are considering whether to grant federal habeas relief from a State
court’s decision. Thus, [a petitioner] not only has to satisfy the elements
of the Strickland standard, but he must also show that the State court
applied Strickland to the facts of his case in an objectively unreasonable
Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010) (brackets in original omitted)
(citations and quotation marks omitted) (emphasis in original).
In order to establish deficient performance, a habeas petitioner “must show that
counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. That reasonableness is judged against
“prevailing professional norms.” Id., 104 S. Ct. at 2065. Moreover, under Strickland,
lower federal courts must be “highly deferential” in their scrutiny of counsel’s
performance. As the Strickland court outlined:
Judicial scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was unreasonable.
A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. There are countless ways to
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provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citations and quotation marks
Simply put, a habeas petitioner “must establish that no competent counsel
would have taken the action that his counsel did take” to overcome the presumption
that counsel’s conduct fell within the wide range of reasonable professional assistance.
Chandler, 218 F.3d at 1315. The reasonableness of counsel’s performance is judged
from the perspective of the attorney, at the time of the alleged error, and in light of all
the circumstances. See, e.g., Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir. 2008)
(“We review counsel’s performance ‘from counsel’s perspective at the time,’ to
avoid ‘the distorting effects of hindsight.’”) (quoting Strickland, 466 U.S. at 689, 104
S. Ct. at 2065).
To satisfy the prejudice prong, a habeas petition “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S. Ct. at 2068. Stated differently, “[a] finding of prejudice requires proof of
unprofessional errors so egregious that the trial was rendered unfair and the verdict
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rendered suspect.” Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001)
(citations and quotation marks omitted). Further, the fact that counsel’s “error had
some conceivable effect on the outcome of the proceeding” is insufficient to show
prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Therefore, “when a
petitioner challenges a death sentence, ‘the question is whether there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.’” Stewart
v. Sec’y, Dept. of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (quoting Strickland, 466
U.S. at 695, 104 S. Ct. at 2069).
Because Strickland and § 2254(d) both mandate standards that are “‘highly
deferential’”, “when the two apply in tandem, review is ‘doubly’ so.” Harrington,
131 S. Ct. at 788 (citations omitted). The inquiry is not then “whether counsel’s
actions were reasonable,” but is instead “whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Id. The court must
determine “whether the state court’s application of the Strickland standard was
unreasonable. This is different from asking whether defense counsel’s performance
fell below Strickland’s standard.” Id. at 785. This “[d]ouble deference is doubly
difficult for a petitioner to overcome, and it will be a rare case in which an ineffective
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assistance of counsel claim that was denied on the merits in state court is found to
merit relief in a federal habeas proceeding.” Evans v. Sec’y, Fla. Dept. of Corr., 699
F.3d 1249, 1268 (11th Cir. 2012).
Finally, “[s]tate court findings of historical facts made in the course of
evaluating an ineffectiveness claim are subject to a presumption of correctness under
28 U.S.C. § 2254(d).” Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001).
Samra’s claim that he was denied effective assistance of trial
counsel at the penalty phase
Samra raises three sub-claims to support his assertion that he received
ineffective assistance of counsel at the penalty phase of his trial. The first of these
claims is that Bell failed to investigate and introduce evidence of Samra’s purported
“brain damage and organic brain dysfunction” for mitigation purposes. The second
claim is that Bell presented evidence in mitigation that had the unintended effect of
becoming aggravating evidence. The third claim is that Bell failed to object to
evidence regarding wall-etchings and gang-type writings on the wall of Duke’s
bedroom and tattoos on Samra’s arm.
Samra presented each of these claims in his Rule 32 Petition and again to the
ACCA on appeal from the Rule 32 Court’s denial of his petition. The ACCA denied
each of the claims on the merits. Accordingly, the claims are subject to AEDPA
Page 50 of 110
review by this Court.
Samra’s claim that Bell failed to adequately investigate
and introduce evidence of “brain damage and organic
Samra contends that Bell’s performance was deficient because he failed to
follow the advice of Dr. Scott, the psychiatrist he hired to develop mitigating
evidence, to have Samra submit to further neuropsychological testing. Samra argues
that further investigation would have revealed that Samra suffers from “organic brain
damage” and “brain dysfunction.” To support his contention that he was prejudiced
by Bell’s alleged ineffectiveness, Samra refers to the testimony of the two doctors he
offered as witnesses at the evidentiary hearing on this matter during his Rule 32
proceedings: Dr. Gelbort, who performed neurological testing on Samra, and Dr.
Mountz, who performed a SPECT scan. Dr. Gelbort testified at the Rule 32 hearing
that Samra was functioning in the bottom range of normal or the top range of the
brain-impaired population, and Dr. Mountz testified that Samra had diminished brain
flow (that was in the low range of normal) in the posterior frontal superior temporal
region of the brain. Samra’s position is that if the results of the neurological testing
performed by Dr. Gelbort and of the SPECT scan performed by Dr. Mountz had been
available to Dr. Scott at trial, his diagnosis of Samra more likely than not would have
Page 51 of 110
been that Samra suffered brain dysfunction, Bell could have then presented the results
to the jury in mitigation on behalf of Samra, and the jury would not have imposed the
This Court’s task under § 2254(d)(1) is to determine whether the ACCA’s
rejection of this claim was contrary to, or an unreasonable application of, the United
States Supreme Court cases on ineffective assistance of counsel offered by Samra,
namely Strickland, supra, Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003), Porter
v. McCollum, 558 U.S. 30, 130 S. Ct. 447 (2009) (per curiam), Williams v. Taylor, 529
U.S. 362, 120 S. Ct. 1495 (2000), Tennard v. Dretke, 542 U.S. 274, 124 S. Ct. 2562
(2004), and Sears v. Upton, 561 U.S. 945, 130 S. Ct. 3259 (2010) (per curiam). Thus,
the Court first turns to the ACCA’s decision.
In considering this claim, the ACCA discussed the Strickland standard and
applied it to Samra’s circumstances, as follows:
Samra next argues that trial counsel was ineffective for not
conducting an investigation on whether he was brain-damaged.
Specifically, Samra argues that because an investigation would have
established that he suffers from “organic brain damage” and “brain
dysfunction,” his counsel’s failure to investigate this strategy prevented
him from introducing this evidence at trial, thereby avoiding imposition
of the death penalty. Thus, Samra argues, because trial counsel did not
pursue this strategy, counsel rendered ineffective assistance.
Samra’s trial counsel, Richard Bell, executed a lengthy affidavit
Page 52 of 110
concerning his strategy in preparing Samra’s defense. Bell offered
additional evidence concerning his trial preparation, investigation, and
strategy through testimony presented at the November 2003 evidentiary
hearing on Samra’s petition. The record indicates that Bell was an
experienced criminal defense attorney, and that he had tried a number
of capital-murder cases. He was aware that a crucial part of trial
preparation was to determine whether Samra had any mental health
conditions that could be presented through the testimony of a mental
health expert in support of either an affirmative defense during the guilt
phase of Samra’s trial or as mitigation during the penalty phase. To this
end, Bell requested funds for a mental health expert.FN2 Bell then
sought out an experienced mental health expert that would not be subject
to an attack as merely a “hired gun.” After receiving recommendations
from a number of nationally known criminal defense attorneys, Bell
contacted Dr. Charles Scott, a forensic neuropsychiatrist affiliated with
the Department of Psychiatry and Neurology at Tulane University
Medical Center. Bell traveled to New Orleans, Louisiana, to interview
Dr. Scott. Based upon that interview, Bell concluded that Dr. Scott
would be a highly -qualified expert witness, and one who could not be
attacked as simply “a hired gun.”
FN2. This request was made on an ex parte basis, in order to
protect the confidentiality of his trial strategy.
Dr. Scott then performed an extensive evaluation of Samra. He
interviewed Samra and his parents; he also reviewed Samra’s
educational and medical records. Afterwards, Dr. Scott prepared a
lengthy written report setting out Samra’s social and educational history,
alcohol and drug history, medical history, Samra’s description of his
involvement in the FOLKS gang, and Samra’s mental history as it
related to the crime. However, Dr. Scott’s ultimate conclusion was that
Samra was not suffering from any psychiatric condition, and, further,
that Samra was capable of assisting in the crime and that he knew the
wrongfulness of his conduct. Because Bell believed that Dr. Scott would
be a highly credible witness, he concluded that if Dr. Scott were called
to testify, his testimony would be very unfavorable testimony to Samra’s
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defense. Accordingly, Bell decided not to call Dr. Scott as a witness.
During the penalty phase of Samra’s trial, Bell attempted to
“humanize” Samra, in order to mitigate the atrocious facts of the crime.
Bell’s aim was to show the jury that Samra had a family and that his
parents loved him. Bell presented the testimony of Samra’s aunt,
mother, and father. Samra’s aunt testified that she had known Samra all
of his life. According to her, Samra was a loving person who had never
displayed any violence. To her knowledge, there was nothing in Samra’s
life that would have predicted any violent or otherwise deviant behavior.
Samra[‘s] parents likewise testified as to their son’s background.
Samra’s father testified that although his son attended “regular”
schools, he participated in “special education classes” as well, and was
“behind” developmentally as a child. Mr. Samra testified that until the
age of 16, Samra had no behavioral or disciplinary problems and was a
loving and obedient child. However, Mr. Samra testified that after
Samra’s junior year in high school, he discovered that his son was using
marijuana. After several incidents where Mr. Samra attempted to get his
son to stop using marijuana, he told Samra that he could either seek
professional assistance to stop using marijuana or else he could leave
home. Samra elected to leave home, dropping out of high school during
his senior year. Mr. Samra suspected that, based on the way his son
dressed, he might be hanging around with “gang-type people.” Samra,
however, denied such involvement.
Samra’s mother testified that during her son’s early childhood,
there were no indications of violence. Mrs. Samra stated that her son
was “a little slower” than other children his age, and that he was easily
frustrated. Additionally, he was diagnosed with having learning
Bell had no evidence that Samra had ever been physically abused
or otherwise mistreated by his parents. Based on Bell’s investigation of
Samra’s background, he had a middle-class upbringing and was not
subjected to the abject poverty that had been the situation in some of the
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other capital cases that Bell had handled.
As a result, Bell’s defense strategy at the guilt phase was twofold:
(1) to present evidence to show that no sane person could have
committed this crime; and (2) to present evidence that Samra was led
into this crime by Mark Anthony Duke. Specifically, Bell attempted to
show that Samra was led into committing this crime due to his and
Duke’s involvement with the FOLKS gang. To support this strategy,
Bell presented the testimony of (1) Dr. Kathleen Ronan, a psychologist
who had examined Samra at Taylor Hardin Secure Medical Facility; (2)
Dr. George Twente; and (3) Sara Woodruff, Samra’s friend and fellow
gang member. Drs. Ronan and Twente’s testimony established that
Samra functioned at the borderline between low average and mild mental
retardation, and that he was led into committing this crime as a result of
gang influence. Bell then attempted to use Sara Woodruff’s testimony
to establish that Duke was the “ringleader” because he was angry with
his father, and that Samra was merely influenced by Duke to commit this
As evidenced from the aforementioned legal principles, when
reviewing claims of ineffective assistance of counsel, this Court gives
counsel’s performance a high degree of deference, particularly where
trial strategy is involved. See Ingram v. State, [Ms. CR-03-1707,
September 29, 2006] __ So. 2d ___, ___ (Ala. Crim. App. 2006)
(citing Strickland v. Washington, 466 U.S. at 690-91); accord Chandler
v. United States, 218 F.2d 1305, 1314 (11th Cir. 2000). A claim that trial
counsel was ineffective because he failed to adequately investigate can
constitute deficient performance when counsel totally fails to inquire
into the defendant’s past or present behavior or life history. See, e.g.,
Whitehead v. State, [Ms. CR-04-2251, June 30, 2006] ___ So. 2d ___,
___ (Ala. Crim. App. 2006) (quoting Ex Parte Lane, 775 So. 2d 847,
853-54 (Ala. 2000)). However, as we made clear in Ingram v. State:
“‘There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a
particular client in the same way.’” ___ So. 2d at ___ (quoting
Strickland v. Washington, 466 U.S. at 689).
Page 55 of 110
Notwithstanding Bell’s efforts to seek out a qualified expert
witness such as Dr. Scott, Samra argues that trial counsel’s performance
was deficient because he ignored Dr. Scott’s recommendations for
additional testing. Dr. Scott’s report recommended a “complete
neuropsychological evaluation, neurology consultation and brain imaging
(such as MRI or PET scanning).” ( C. 335.) However, Dr. Scott’s
report did not mention a SPECT test be performed on Samra.FN3 Bell
stated, that to the best of his recollection that an MRI was performed on
Samra and that it showed no medical abnormalities. Bell also
investigated to see if any Birmingham-area hospital had a PET machine
and discovered that no hospital had one.
FN3. Some mention of a SPECT test was made in an
unsigned affidavit prepared for Dr. Scott’s signature
that was to be filed with a motion for funds.
However, this request was never made.
Clearly, this is not a case where counsel failed to conduct any
investigation into possible mitigating evidence. See Wiggins v. Smith,
539 U.S. 510 (2003). There is absolutely no indication that this case falls
within the scope of the Supreme Court’s holding in Wiggins, or any of
the other decisions cited by Samra in brief. Indeed, after applying the
factors used by the Supreme Court, we are unable to say that Samra’s
trial counsel rendered ineffective assistance.
First, we find no instances of attorney error or malpractice in this
case. Samra’s trial counsel had a coherent, well thought-out defense
strategy of showing that Samra was influenced by his co-defendant’s
more dominant personality and that Samra had no history of violent
crime until becoming friends with Mark Anthony Duke. Additionally,
none of the public records corroborates Samra’s claim that he had
“organic brain damage,” unlike in Wiggins, where public records
corroborated the mitigating evidence. Although Samra’s medical
records suggest some childhood neurological deficits, those records also
indicate that, if additional treatment was mandated, he would have
received further treatment.
Page 56 of 110
Second, the additional mitigating evidence presented in this case
is not as compelling as the evidence presented in Wiggins. Samra offered
the testimony of Drs. Mountz and Gelbort at his Rule 32 evidentiary
[sic]. Both men were retained expert witnesses who had testified on
numerous occasions. Dr. Mountz’s testimony could only establish that
Samra had diminished brain flow that placed him in the low range of
normal. Dr. Gelbort testified that the test results placed Samra in the
borderline range of low-normal to mildly brain-impaired.
Third, when the gravity of the aggravating circumstances when
[sic] reweighed against the additional mitigating evidence presented at
the Rule 32 evidentiary hearing, we do not believe that this additional
evidence would have influenced the jury’s appraisal of Samra’s moral
culpability. Thus, the facts of this case do not fall within the scope of
either Wiggins v. Smith or Williams v. Taylor, 529 U.S. 362 (2000). See
also Rutherford v. Crosby, 385 F.3d 1300, 1315 (11th Cir. 2004), cert.
denied, 544 U.S. 982 (2005). Quite simply, because the additional
mitigating evidence was less than compelling and because it in no way
altered the aggravating circumstance that was found by the sentencer, we
conclude that there is no reasonable probability that the additional
mitigating evidence offered during the Rule 32 evidentiary hearing would
have resulted in a different sentence.
In short, this Court can find neither that Samra’s trial counsel’s
performance was deficient nor that his defense was prejudiced as a result
of counsel’s performance. As previously noted, the fact that Bell chose
to pursue a particular trial strategy, rather than the one proposed by
Samra’s Rule 32 counsel, does not render Bell’s performance deficient.
Nor does Bell’s failure to offer additional evidence of Samra’s mental
capacities establish a level of prejudice that would warrant postconviction relief. Indeed, given the circumstances of this case, we do not
believe that there was any reasonable probability that the sentencer
would have concluded that the balance of the aggravating circumstances
against the mitigating circumstances would have warranted a sentence
other than death. Strickland v. Washington, 466 U.S. at 695. Indeed, we
note the circuit court’s findings as to this matter:
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There is no reasonable probability that the balance of
aggravating and mitigating circumstances that led to the
imposition of the death penalty in this case would have
been different had trial counsel introduced the evidence
complied and presented in this Rule 32 proceeding. The
aggravating circumstance that was found at the penalty
phase was the murder was especially heinous, atrocious,
and cruel, especially when compared to other capital
felonies. This Court made the following findings regarding
the application of this aggravating circumstance:
WHEREAS, the Court hereby finds
that the offense was particularly heinous,
atrocious and cruel when compared to other
capital offenses. Evidence showed at trial that
the victims in this case were killed in a very
cruel and heinous manner. The minor
children’s throats were actually cut and
according to testimony of the medical
examiner, they drowned in their own blood.
The photographs and other demonstrative
evidence in this case leads to one and only one
conclusion, that the manner in which the
victims were killed was much more heinous
and atrocious and cruel than would be
necessary in any killing.
This case stands out as particularly
heinous, atrocious and cruel when it is
considered that at least one victim, according
to the admission of Defendant, begged not to
be killed. All of the victims died very painful
and brutal deaths. The victims apparently
struggled for life and breath and that very
struggle caused one or more of the victims to
drown in their own blood.
Page 58 of 110
The record is clear that when compared
to other capital cases, the circumstances in
this case make it particularly heinous,
atrocious and cruel.
Clerk’s Record at 516.
In light of the brutal nature of this crime against two
adult victims and two children, ages six and seven, who had
their throats cut, this Court finds no reasonable probability
that the mitigating circumstances gathered and presented
in connection with Samra’s Rule 32 proceedings would
have altered the balance of aggravating and mitigating
circumstances. First, none of the evidence developed in
connection with these Rule 32 proceedings served to alter
in any way the aggravating circumstance of a heinous and
atrocious crime that supported the imposition of the death
penalty. Samra offered mothering [sic] at the Rule 32
evidentiary hearing to alter the evidence that demonstrated
he shot Dedra Hunt in the face and then went upstairs and
cut the throat of one of the children while she was begging
for her life and fighting for her life by trying to deflect the
knife away from her throat.
Second, it is not [at] all clear how the evidence
presented at the Rule 32 hearing would have been helpful
to Samra’s efforts to secure a life without parole sentence.
Although the evidence presented at the Rule 32 evidentiary
hearing was argued to be mitigating, it is not really clear
that it would be accepted in that light. Dr. Mountz
admitted that there was no research methodology to show
that a SPECT scan result can allow anyone to draw
conclusions about the reasons that compel an individual to
commit murder. Dr. Mountz also said that the SPECT
results are irrelevant to whether Samra appreciated the
wrongfulness of his actions or whether he planned the
Page 59 of 110
murders or whether he tried to hide evidence in an effort to
conceal the murders. Both Dr. Mountz and Dr. Mayberg
stated that Samra’s brain scan could have looked much
different at the time of the crime. There was no evidence
presented as to how diminished brain flow contributes to a
murderer’s judgment or insight.
Third, some of the evidence presented at the Rule 32
evidentiary hearing was known to the jury and the
sentencing judge. Samra’s trial counsel presented evidence
that his IQ scores were in the borderline range of
intellectual functioning. Given that the battery of
neuropsychological tests only affirms this fact that was
already before the jury, Samra’s trial counsel’s decision not
to seek further neuropsychological testing did not prejudice
Samra. The trial court rejects the opinion that Samra
suffers from organic brain dysfunction because the
impairments shown on the neuropsychological testing is
further evidence of his IQ and not any brain dysfunction;
because the SPECT scan interpretation of Dr. Mayberg
shows that the results were normal; because there is no
evidence that this alleged condition of reduced blood flow
to the brain existed at the time of the offense; and, because
even if Dr. Mountz was correct in defining Samra’s SPECT
scan as abnormal, the abnormality was not in the portion of
the brain that controls the functioning that Dr. Gelbort
found as impaired.
In conclusion, this Court finds no reasonable
probability that the balance of aggravating and mitigating
circumstances underlying Samra’s death sentence would
have been different if the judge and jury had heard the
evidence presented at the Rule 32 evidentiary hearing. We
note that many death penalty cases involve murders that are
carefully planned, or accompanied by torture, rape or
kidnapping. Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th
Page 60 of 110
Cir. 1998) (citation omitted). “In these types of cases, this
Court has found that the aggravating circumstances of the
crime outweigh any prejudice caused when a lawyer fails to
present mitigating evidence.” Id. (citing Francis v.
Dugger, 908 F.2d 696, 703-04 (11th Cir. 1990) (finding that
the failure to present mitigating evidence of a deprived and
abusive childhood did not prejudice capital defendant at
trial for torture-murder of government informant). The
less than compelling evidence offered by Samra does not
mitigate this horrific crime that resulted in four murders.
( C. 793-797.)
Based on the foregoing, the circuit court correctly rejected
Samra’s claim that trial counsel was ineffective for not presenting
additional evidence as to Samra’s purported brain dysfunction.
(C.R. Vol. 49, at 113-21).
Nothing in the ACCA’s well-reasoned opinion is contrary to, or an
unreasonable application of, Strickland or its progeny. In applying the performance
prong first, the ACCA reasonably concluded that Bell’s investigation was not
deficient. When considering a failure to investigate claim, the Supreme Court has
said, “counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. “In any ineffectiveness
case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. The
Page 61 of 110
investigation conducted by Bell, including his decision not to have Samra submit to
a PET scan, satisfied all professional norms. Bell, an experienced capital case
attorney, knew that an important part of the pre-trial preparation was to see if Samra
had any mental health deficiencies or abnormalities. After searching for a wellregarded mental health expert who would be viewed as credible and not susceptible
to attack as a criminal defendant oriented expert, including consulting nationallyknown criminal defense attorneys, Bell hired Dr. Scott to evaluate Samra, who
reported that Samra was not suffering from any psychiatric condition and that Samra
was mentally capable of assisting in the crime and knew the wrongfulness of his
conduct. Dr. Scott recommended an MRI or a PET scan be done, and although Bell
did not have a PET scan done, because Bell could not locate a hospital in the
Birmingham area that performed the scans, Bell did follow Dr. Scott’s
recommendation to have an MRI done on Samra which showed he had no structural
abnormalities in his brain. Bell also investigated Samra’s school and medical records
and spoke with his friends and family. Bell interviewed Samra and found him to be
able to carry on an intelligent conversation and determined that he could function in
every day society.
Yet Samra contends that his background, which was known to Bell at the time,
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should have indicated to Bell that the most sophisticated technology and testing
possible should be used to test for neurological deficiencies in his client. As an initial
matter, Samra does not cite to a Supreme Court case holding that trial counsel is
ineffective for failing to follow up on every recommendation that a mental health
expert makes. Trial counsel is of course limited by time and financial resources. See
Rogers v. Zant, 13 F.3d 384, 387 (11th Cir. 1994) (“Strickland indicates clearly that the
ineffectiveness question turns on whether the decision not to make a particular
investigation was reasonable. This correct approach toward investigation reflects the
reality that lawyers do not enjoy the benefits of endless time, energy or financial
resources.”) (internal citation omitted); Atkins v. Singletary, 965 F.2d 952, 959-60
(11th Cir. 1992) (“At some point, a trial lawyer has done enough. . . . A lawyer can
almost always do something more in every case.”). In any event, Samra’s background
does not raise the same kind of “red flags” that were present in other cases where trial
counsel was found to be ineffective for failing to investigate. Samra emphasizes that
he had been enrolled in special education classes from second through eighth grade
and that he had a history of seizures and tremors. However, while Samra’s medical
records did indicate some developmental delays and seizure activity, Samra was
treated by specialists at Emory University who did not note any more problems. Dr.
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Mayberg, who testified at the Rule 32 evidentiary hearing, stated that she had
reviewed Samra’s medical records which indicated certain medical tests were
performed during Samra’s childhood. According to Dr. Mayberg, Samra’s parents
took him to a childhood neurologist out of concern that Samra was developmentally
delayed. Dr. Mayberg, in her review of the medical records, stated that one
neurologist thought that Samra might have a form of childhood epilepsy, but that the
second neurologist disagreed. Dr. Mayberg surmised that Samra may have had some
neurological deficits in childhood that improved over time and that, because Samra
was under the care of specialists, the condition would have been followed up on if it
had persisted. Because of the CT scans performed on Samra as a child, the normal
results of his MRI show that Samra’s brain has no old scars, developmental anomalies,
or acquired lesions. Samra made A’s, B’s, and C’s in high school. He held several
different jobs, one of which required him to use a cash register.
For these reasons, the Court can find no error in the ACCA’s determination
that this case has no similarities to Wiggins, where the Supreme Court determined that
trial counsel was constitutionally ineffective for failing to investigate mitigating
evidence. Wiggins involved a situation where counsel received a one-page description
of the defendant’s personal history included in the pre-sentence report, which noted
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the defendant’s “misery as a youth” and described his background as “disgusting,”
as well as a record from the department of social services which revealed that the
defendant’s mother “was a chronic alcoholic,” that the defendant “was shuttled from
foster home to foster home,” and that “on at least one occasion, [the defendant’s]
mother left him and his siblings alone for days without food.” 539 U.S. at 523, 123 S.
Ct. at 2536. Counsel failed to investigate these leads, but if he had, he would have
discovered “evidence of the severe physical and sexual abuse [the defendant] suffered
at the hands of his mother and while in the care of a series of foster parents.” Id. at
516, 123 S. Ct. at 2533. The abuse occurred throughout Wiggins’s childhood, teenage
years, and into early adulthood and was well-documented in medical, school, and
social services records. Id. at 516-17, 123 S. Ct. at 2533. For example, Wiggins’s
mother frequently left Wiggins and his siblings home alone for days at a time, which
forced them to “beg for food and to eat paint chips and garbage.” Id. at 517, 123 S. Ct.
at 2533. The mother routinely beat the children for breaking into the kitchen, which
she often kept locked. Id. On one occasion, Wiggins’s mother forced his hand against
a hot stove burner, which resulted in an injury that required hospitalization. Id. When
he was six years old, Wiggins was placed in foster care where he was physically abused
by his first and second foster mothers. Id. Wiggins’s second foster father repeatedly
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molested and raped him. Id. To escape the abuse Wiggins ran away from one of his
foster homes at age sixteen and was returned to a foster home where he was repeatedly
raped by one of the foster mother’s sons. Id. After leaving the foster care system,
Wiggins entered a Job Corps program where he was sexually abused by his supervisor.
Id. All of this evidence was presented in post-conviction proceedings, but because
trial counsel never investigated it, all that he offered in mitigation was that the
defendant had no prior convictions. Id. The Supreme Court held that “any
reasonably competent attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible defenses.” Id. at 525, 123 S.
Ct. at 2537. In Samra’s case, there was simply nothing akin to the well-documented
evidence of a troubled childhood in Wiggins that should have been investigated by
Nor was the ACCA’s decision an unreasonable application of Porter, cited by
Samra. Porter involved a situation where counsel, confronted with a “fatalistic and
uncooperative” client, conducted a truncated investigation and presented practically
no mitigation evidence at sentencing. 558 U.S. at 40, 130 S. Ct. at 453. Indeed,
counsel “had only one short meeting with Porter [the defendant] regarding the
penalty phase . . . [and] did not obtain any of Porter’s school, medical, or military
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service records or interview any members of Porters’s family.” Id. at 39, 130 S. Ct. at
452. Because counsel ignored “pertinent avenues for investigation of which [counsel]
should have been aware,” the jury in sentencing “heard almost nothing that would
humanize Porter or allow them to accurately gauge his moral culpability.” Id. at
40–41, 130 S. Ct. at 453-54. Here, Bell conducted an extensive investigation in
preparing for the guilt and penalty phases of the trial. His efforts included hiring Dr.
Scott to prepare a report, having an MRI done, examining school and medical records,
and talking with Samra’s friends and family. At the penalty phase, Bell had three
witnesses testify, each of whom buttressed the humanization strategy he had chosen
to pursue. Bell’s performance stands in stark contrast to the performance in Porter,
where the Supreme Court found counsel deficient for failing “to conduct some sort
of mitigation investigation.” See id. at 40, 130 S. Ct. at 453.
Samra also likens Bell’s failure to follow up on all of Dr. Scott’s
recommendations to the deficient performance by counsel in Lockett v. Anderson, 230
F. 3d 695 (5th Cir. 2000). Of course, to establish a violation of § 2254(d)(1), Samra
must cite decisions of the Supreme Court, and not to decision from the courts of
appeals. Renico v. Lett, 559 U.S. 766, 778-79, 130 S. Ct. 1855, 1865-66 (2010). Even
if this Court could consider Lockett in determining a violation of § 2254(d)(1), it is
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easily distinguishable for several reasons. In Lockett, defense counsel admitted he was
overworked and distracted because he was dealing with his mother’s illness and
hospitalization. 230 F.3d at 711. In addition, defense counsel ignored evidence of
“repeated head injuries, black-outs, delusional stories, references to self as another
name, family troubles, drug and/or alcohol addiction.” Id. at 714. Indeed, even
Lockett’s confession contained several delusional statements. Id. at 713. Lockett also
had a history of seizures that was ultimately attributed to temporal lobe epilepsy. Id.
All of these warning signs were ignored by defense counsel and were not further
investigated. In this case, the developmental delays and neurological problems that
occurred in Samra’s early childhood are not of the same caliber as the warning signs
in Lockett, such that they should have caused trial counsel to conduct further
A further distinction with Lockett is that the mental health diagnosis in that case
was specifically linked to the crime and the ability of the defendant to distinguish
between the concepts of right and wrong. The Fifth Circuit, in distinguishing Lockett
on those grounds, stated “Lockett’s experts specifically linked his temporal lobe
epilepsy, which was evident in his confessions and through a long paper trail of prior
medical problems, to Lockett’s crime.” Nixon v. Epps, 405 F.3d 318, 327 (5th Cir.
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2005). Further, the Fifth Circuit noted that “[t]wo different experts stated explicitly
that they did not believe Lockett would have committed his crimes if he did not have
severe mental problems.” Id. In contrast to the mental health findings in Lockett, the
Nixon Court ruled that the mental health diagnosis would not have “prevented [the
defendant] from knowing the difference between right and wrong.” Id. In the present
case, Samra has not presented any evidence that he has a mental illness or any
connection between his purported “organic brain damage” and his participation in
It was also reasonable for the ACCA to conclude that Samra was not prejudiced
by Bell’s decision not to have a PET scan done. When assessing prejudice, courts are
required to “evaluate the totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas proceeding—in re-weighing
it against the evidence in aggravation.” Williams, 529 U.S. at 397-98, 120 S. Ct. at
“That same standard applies—and will necessarily require a court to
‘speculate’ as to the effect of the new evidence—regardless of how much or how little
mitigation evidence was presented during the initial penalty phase.” Sears, 130 S. Ct.
Samra contends that the ACCA did not appreciate the impact of the additional
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evidence he presented at the Rule 32 hearing, and in so doing violated Strickland,
Williams, and Sears. But Samra’s additional mitigating evidence was less than
compelling: it consisted of one expert (Dr. Mountz) stating that Samra had diminished
blood flow in one area of the brain that placed him in the low range of normal and
another expert (Dr. Gelbort), who only testifies on behalf of criminal defendants,
stating that the test results he derived indicate that Samra was functioning in the
bottom range of normal or the top range of the brain-impaired population. In fact,
after hearing this testimony firsthand, which was disputed by the State’s experts, Drs.
King and Mayberg, the Rule 32 Court ultimately rejected Samra’s contention that he
suffered from “organic brain dysfunction.” (C.R. Vol. 49, at 120.) The Court is
convinced that the ACCA, in affirming the Rule 32 Court’s ruling, appropriately
weighed the mitigating evidence presented at trial and during the post-conviction
proceeding against the aggravating evidence.
First, the ACCA found that this additional evidence does not alter in any way
the aggravating circumstances of the murders—Samra shooting Dedra Hunt in the
face and cutting the throat of the one of the children while she was begging for her life.
Indeed, this is not a case where the weight of the aggravating circumstances or the
evidence supporting them was weak. The jury heard how Samra and his friends
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planned the murder of Duke’s father and planned to kill Dedra Hunt and her two
daughters so as to leave no witnesses. The jury also heard how all of the victims died
very painful and brutal deaths, struggling for life and breath such that one or more of
the victims drowned in their own blood. Finally, the jury knew that Samra cut one of
the young daughter’s throats while she begged for her life. There is no reasonable
probability that the jury, if only it had heard the testimony of Drs. Gelbort and
Mountz, would have concluded that this planned, deliberate, and cruel murder was
mitigated to any appreciable extent by the fact that Samra’s brain was mildly impaired
and had diminished blood flow in one area so as to place him in the low range of
Second, the ACCA determined that it was not clear that the judge and jury
would have viewed the additional evidence as truly mitigating because Dr. Mountz
admitted that there was no research showing that the results of a SPECT scan can
allow anyone to draw conclusions about the reasons that compel a person to commit
murder. Samra contends that this conclusion is contrary to law because there is no
requirement that mitigation evidence must have a nexus to an individual’s mindset in
committing a crime before it may be presented. Samra’s argument is misplaced
because, although the standard of what constitutes relevant evidence in the mitigation
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phase of a capital case is indeed expansive, i.e., “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence,” Tennard, 542 U.S. at 284, 124
S. Ct. at 2570 (internal quotation marks and citation omitted), the ACCA was merely
stating that, had the testimony of Drs. Gelbort and Mountz, and the results of their
additional testing, been before the judge and jury, it is not clear that the judge and jury
would have considered the evidence trustworthy enough to outweigh the aggravating
circumstances surrounding these murders.
Third, and perhaps most importantly, the ACCA determined that all of the
additional tests conducted on Samra during the post-conviction proceedings merely
served to reiterate a fact that was already before the jury and judge: that Samra has a
low IQ and was intellectually impaired. See Strickland, 466 U.S. at 699-700, 104 S. Ct.
at 2071 (finding no prejudice when the evidence that petitioner says his trial counsel
should have offered at sentencing “would barely have altered the sentencing profile
presented to the sentencing judge”). This is not a case where the judge and jury heard
no evidence about Samra’s mental and emotional state. Drs. Ronan and Twente,
along with Samra’s father, mother, and aunt, testified about Samra’s intellectual
difficulties. There was also evidence before the jury of other possible mitigating
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factors: Samra’s age, his lack of significant criminal history, his truthfulness and
cooperation with law enforcement officers, and the remorse he expressed in
statements to law enforcement officers. Under these circumstances, the ACCA
reasonably concluded that the additional mitigating evidence would not have resulted
in a sentence other than death.
For the foregoing reasons, the ACCA’s decision was not contrary to, or an
unreasonable application of, clearly established federal law, and habeas relief is not due
to be granted on this claim.
Samra’s claim that Bell presented mitigating evidence
that was actually aggravating
Samra claims that when Bell presented evidence that Samra was a member of
the FOLKS gang in an attempt to demonstrate that Samra was easily led by a stronger
personality such as that of his co-defendant Duke, this evidence only served to inflame
the jury and denigrate Samra. Samra also contends that Bell’s performance was
deficient for presenting Dr. Ronan’s guilt-phase testimony that Samra does not suffer
from a psychiatric disorder, understood the difference between right and wrong, and
lacked emotionality and a conscience.
According to Samra, the ACCA’s
determination that it was not constitutionally deficient for Bell to present this
evidence is contrary to, or an unreasonable application of Strickland, Wiggins,
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Williams, and Sears, supra.
In rejecting this claim, the ACCA quoted extensively from the Rule 32 Court’s
findings, as follows:
In Paragraph 8(B) of his petition, Samra claimed that his trial
counsel was ineffective for presenting evidence at sentencing that had the
unintended effect of becoming aggravating evidence. Specifically, Samra
claims that his trial counsel acted deficiently by presenting evidence that
he was a member of a gang and that he lacked conscience, remorse, or
emotionality. In response to this claim, the State presented the affidavit
of Richard W. Bell, who explained his trial strategy for introducing
evidence of Samra’s involvement in the FOLKS (“Forever Our Lord
King Satan”) gang:
Going into trial, I knew that the trial
judge had determined the confession was
admissible, therefore, I could not argue that
Samra was innocent of the crime. My defense
strategy at the guilt/innocence phase was to
present evidence to show that no sane person
could have committed this crime and that
Samra was led into this crime by Mark Duke.
More importantly, Samra was led into this
crime due to his and Duke’s involvement with
the FOLKS gang.
To support this strategy, I called the
following witnesses at the guilt phase of the
trial: Dr. Kathleen Ronan, a psychologist who
had examined Samra at the Taylor Hardin
Secure Medical Facility, Dr. George Twente,
and Sara Woodruff, Samra’s friend and fellow
gang member. The testimony of the two
experts demonstrated that Samra was
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functioning in the borderline between low
average and mild mental retardation and that
he was led into committing this crime because
of the gang influence. With the testimony of
Sara Woodruff, I tried to demonstrate that
Duke was the ringleader because he was angry
with his father and that Samra was influenced
by Duke to commit this crime.
Of course, I was limited in my
presentation at the guilt phase because I did
not have any evidence to show that Samra was
insane or that due to mental retardation he
could not appreciate the criminality of his
conduct. None of the expert witnesses that I
consulted stated that Samra was mentally
retarded. I did not call Dr. Scott [the
psychiatrist that performed an evaluation of
Samra before trial] as a witness because he
told me Samra was not suffering from any
psychiatric condition and that Samra was
mentally capable of assisting in the crime and
knew the wrongfulness of his conduct. I
believed Dr. Scott to be a very credible expert
who, if he testified, could have delivered very
unfavorable testimony for Samra. In addition
to relying on the expert’s conclusions, I
observed Samra for any information regarding
his intelligence. In my discussions with
Samra, I found him to be able to carry on an
intelligent conversation and determined that
he could function in everyday society. Samra
worked in fast food restaurants and, to the
best of my recollection, had completed the
eleventh grade. I had no information to show
that Samra was mentally retarded.
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At the penalty phase, I wanted to
humanize Samra for the jury. I did not want
the jury to be left with the image that the
prosecutor had created of Samra. I wanted to
show that Samra had a family and that his
parents loved him. To that end, I called
Samra’s aunt, and his father or mother to
testify on his behalf. I did not have any
information that Samra was physically abused
as a child or that his father mistreated him.
Samra had a middle [class] upbringing and was
not subjected to the abject poverty that has
been the situation in some of the other capital
cases I have handled. The jury could also
consider at the penalty phase all of the defense
testimony presented at the guilt phase. In the
penalty phase closing argument, I tried to
emphasize that Samra was a person who never
committed a violent criminal act until he was
influenced by his gang activities with Mark
Richard Bell’s affidavit at pp. 8-10. Further, … Mr. Bell
testified at the Rule 32 evidentiary hearing that Samra’s
gang activity influenced his participation in the crime and
that Bell wanted to emphasize that at trial. R. 264. Mr. Bell
testified that he was limited to presenting evidence of
Samra’s gang activity to establish a mental defect defense
because he had no other evidence of any other mental
defect. R. 289-91.
To establish a claim of ineffective assistance of trial
counsel, the petitioner must allege facts and prove them by
a preponderance of the evidence that trial counsel’s
performance was deficient. This Court must objectively
and deferentially view counsel’s conduct within the context
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of the facts of the particular case and as of the time of the
alleged misconduct without letting hindsight cloud that
judgment. Payne v. State, 791 So. 2d 383, 399-400 (Ala.
Crim. App. 1999) (internal citations omitted). Further, the
Court of Criminal Appeals has recognized that there are
countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not
defend a particular client in the same way. See Dobyne v.
State, 805 So. 2d at 743 (citing Strickland v. Washington,
466 U.S. at 689; Ex parte Lawley, 512 So. 2d 1370, 1372
(Ala. 1987)). To prevail on a claim that counsel was
deficient in choosing a particular trial strategy, the
petitioner must demonstrate the following:
To uphold a lawyer’s strategy, we need not
attempt to divine the lawyer’s mental
processes underlying the strategy. “There are
countless ways to provide effective assistance
in any given case.” Strickland, 104 S. Ct. at
2065. No lawyer can be expected to have
considered all of the ways. If a defense lawyer
pursued Course A, it is immaterial that some
other reasonable courses of defense (that the
lawyer did not think of at all) existed and that
the lawyer’s pursuit of Course A was not a
deliberate choice between Course A, Course
B, and so on. The lawyer’s strategy was
Course A. And, our inquiry is limited to
whether this strategy, that is, Course A, might
have been a reasonable one. See generally
Harich v. Dugger, 844 F.2d 1464, 1470-71
(11th Cir. 1988) (en banc)
(concluding—without evidentiary hearing on
whether counsel’s strategy arose from his
ignorance of law—that trial counsel’s
performance was competent because
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hypothetical competent counsel reasonably
could have taken action at trial identical to
actual trial counsel).
See Chandler v. United States, 218 F.3d 1305, 1316, n. 16
(11th Cir. 2000).
The evidence presented in the affidavit and
evidentiary hearing shows that attorney Richard Bell was an
experienced criminal defense attorney; had experience in
defending other capital murder defendants; consulted other
criminal defense attorneys, experts, investigators, and other
defense resources for this case; recruited two other lawyers
and a law clerk to assist him in Samra’s defense; and, that
he spent a large amount of time on Samra’s defense. R.
262-98. Under the circumstances of this case, where Mr.
Bell had no other evidence that Samra was suffering from
any other mental defect and no prior history of violence
before his gang involvement, Mr. Bell’s choice to present
evidence that Samra committed this crime as a result of
gang influence was a reasonable strategic decision. As
such, this choice did not constitute deficient performance.
(C.R. Vol. 49 at 122-26 (quoting Vol. 49 at 71-76)).
Counsel’s “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at
690, 104 S. Ct. at 2066. Despite this principle, Samra’s position is that Bell’s strategy
in presenting evidence that Samra was a member of the FOLKS gang was so
egregiously unreasonable that it falls outside of the presumption of reasonableness
afforded to counsel’s strategic choices. In support, Samra cites several decisions from
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federal and state courts that he contends establish that presentation by defense
counsel of aggravating evidence constitutes deficient performance and ineffective
assistance. As these are not United States Supreme Court decisions, they do not
show that the ACCA’s determination was contrary to federal law established by the
Supreme Court of the United States. See Renico, 559 U.S. at 778, 130 S. Ct. at 1866.
This Court can conceive of a situation wherein trial counsel’s performance is
deficient when he or she presents no evidence in mitigation or presents mitigation
evidence that is actually aggravating. For example, in Horton v. Zant, 941 F.2d 1449
(11th Cir. 1991), cited by Samra, the Eleventh Circuit found that the
petitioner/defendant was prejudiced by counsel’s performance where he performed
no pretrial investigation into mitigating circumstances, introduced no mitigating
evidence during the trial, attacked his client’s character during closing argument, and
“virtually encouraged the jury to impose the death penalty.” Id. at 1462-63. This is
not that instance. Here, after conducting a thorough investigation of Samra’s
background, which included commissioning an expert to evaluate the viability of a
mental health defense, Bell determined that he had no evidence that Samra was insane
or that due to mental retardation he could not appreciate the wrongfulness of his
conduct. Only then did Bell decide to present information concerning gang activity
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in an effort to show that Samra was not violent until he became affiliated with the
FOLKS gang and that he was led into committing this crime by Duke. It simply
cannot be said that Bell abjectly failed to consider his options such that this defense
strategy is subject to challenge.
This is also not Magill v. Dugger, 824 F.2d 879 (11th Cir. 1987), also cited by
Samra. In that case, trial counsel met with his capital-defendant client for the first
time for fifteen minutes on the morning of trial, utterly failed to prepare the defendant
for either direct or cross-examination, did not give the defendant any advice on
whether to testify in his own defense (and the defendant then twice admitted that the
murder was planned), failed to object when the prosecutor asked the defendant to
concede his guilt to capital murder, and conceded guilt in his opening statement
without explaining the theory of the defense. Id. at 888-91. Then during the penalty
phase, counsel inexplicably failed to call a doctor to testify who would have stated that
the defendant exhibited serious signs of emotional problems at the age of thirteen, yet
decided to present the testimony of a court-appointed psychiatrist who stated on
cross-examination that the defendant was not under the influence of an extreme
emotional or mental disturbance at the time of the crime. Id. at 889. During the
habeas proceedings, that psychiatrist testified that he had never been interviewed by
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counsel or even asked to examine the defendant regarding the applicability of the
statutory mitigating circumstances. Id. The Eleventh Circuit found that the
combined effect of these guilt and penalty phase failures affected the outcome of the
penalty phase of the trial such that the defendant was prejudiced by counsel’s
Despite Samra’s attempts to liken Dr. Ronan’s testimony to that of the
psychiatrist’s in Magill, it cannot be said that Bell’s performance fell to the level of
incompetence as that exhibited in Magill. The Eleventh Circuit held that counsel’s
failure to discover the psychiatrist’s opinion prior to calling him to the stand was one
deficiency among many committed by counsel in Magill. In contrast here, after Dr.
Ronan evaluated Samra at Taylor Hardin Secure Medical Facility and Bell examined
her report, he decided to present her testimony in an attempt to show that Samra
functioned at the borderline between low average intelligence and mild mental
retardation and that he was led into committing the crime as a result of gang influence.
Bell’s decision to call Dr. Ronan was reasoned in light of the fact that her overall
conclusions supported the defense theory. The fact that Dr. Ronan’s assessment of
Samra was not sufficient to cause the jury to recommend a life sentence does not
mean that Bell’s performance was ineffective.
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For these same reasons, Samra’s invocation of the Supreme Court’s decisions
in Strickland, Wiggins, Williams, and Sears, without further explanation, does not
advance his argument that habeas relief is warranted. Taken together, these cases
make clear that once a court is satisfied that counsel conducted a thorough mitigation
investigation, the particular strategic choices made by a fully-informed counsel will
rarely, if ever, be subject to review. See Strickland, 466 U.S. at 690-91, 104 S. Ct. at
2066 (strategic choices made after “less than complete investigation” are reasonable
only to the extent that reasonable professional judgment supports the limitations on
investigation); Wiggins, 539 U.S. at 522, 123 S. Ct. at 2535 (“[C]ounsel’s failure to
uncover and present voluminous mitigating evidence at sentencing could not be
justified as a tactical decision . . . because counsel had not ‘fulfill[ed] their obligation
to conduct a thorough investigation of the defendant’s background.’”) (quoting
Williams, 529 U.S. at 396, 120 S. Ct. at 1514-15); Sears, 130 S. Ct. at 3265 (although
a specific mitigation “theory might be reasonable, in the abstract, [that fact] does not
obviate the need to analyze whether counsel’s failure to conduct an adequate
mitigation investigation before arriving at this particular theory prejudiced” the
defendant). Because Bell conducted a thorough investigation before deciding to offer
evidence of Samra’s involvement in the FOLKS gang for mitigation purposes, the
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ACCA did not violate these precedents in rejecting Samra’s claim that Bell’s strategy
was per se unreasonable so as to be constitutionally deficient.
In sum, Samra was not deprived of a fair trial or the counsel guaranteed by the
Sixth Amendment, so habeas relief is not warranted on this claim under § 2254(d).
Samra’s claim that Bell did not adequately object to the
trial court’s admission of videos and pictures of “gangtype” writings on the walls of Duke’s bedroom and
photographs of the tattoos on Samra’s arms
Samra’s argument with regard to this claim begins with the premise that, under
Alabama law, evidence of gang membership is presumptively prejudicial and
inadmissible at trial where it has nothing to do with any issue in the case. See Thomas
v. State, 625 So. 2d 1149, 1153 (Ala. 1992). Samra contends that because his
involvement with the FOLKS gang was not in any way relevant to the guilt or
sentencing determinations for the murders at issue, the gang-related evidence was
wholly irrelevant and inadmissible, and Bell’s failure to object to its admission on
those grounds was constitutionally deficient. Samra also asserts that Bell should have
objected to the introduction of the evidence because, even if Samra’s membership in
the FOLKS gang was relevant, the prejudicial effect of the visual evidence of gang
involvement outweighed its probative value, considering that Samra admitted to
involvement in the FOLKS gang and the murders for which Samra and Duke were
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convicted were not alleged to be gang-related. Samra contends in a conclusory
fashion that the ACCA’s determination that Bell’s performance was not ineffective
on this ground was contrary to, or an unreasonable application of, Strickland, Wiggins,
Williams, and Sears, supra.
In rejecting this claim, the ACCA again quoted extensively from the Rule 32
Court’s order, as follows:
In paragraph 8(D) of the petition, Samra claims his
trial counsel was ineffective for failing to object to the
evidence regarding wall-etchings and gang-type writings on
the wall of Mark Duke’s bedroom and tattoos on Samra’s
arm. This claim is wholly without merit because, as
discussed above, trial counsel’s theory of defense was to
show that Samra did not know the difference between right
and wrong because of the gang influence exerted upon him
by Mark Duke. At the evidentiary hearing, Mr. Bell
testified that he was limited to presenting evidence of
Samra’s gang activity to establish a mental defect defense
because he had no other evidence of any other mental
defect. [R32 at 289-91.]
This Court recognizes that there are countless ways
to provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a
particular client in the same way. See Dobyne v. State, 805
So. 2d at 743 (citing Strickland v. Washington, 466 U.S. at
689; Ex parte Lawley, 512 So. 2d 1370, 1372 (Ala. 1987)).
To prevail on a claim that counsel was deficient in choosing
a particular trial strategy, the petitioner must demonstrate
that the strategy was unreasonable. See Chandler v. United
Page 84 of 110
States, 218 F.3d 1305, 1316 n. 16 (11th Cir. 2000).
In his affidavit, Mr. Bell stated that he had no other
evidence that Samra was suffering from any mental defect
and that he had no prior history of violence before his gang
involvement. Further, the evidence of gang involvement
was used by trial counsel to put more of the blame on Mark
Duke and to make Duke look more culpable because he was
considered the leader of the gang. Therefore, Mr. Bell’s
choice to present evidence that Samra committed this
crime as a result of gang influence was a reasonable
strategic decision. As such, this choice did not constitute
(C.R. Vol. 49, at 126-27 (quoting Vol. 49, at 97-99)).
Bell’s decision not to object to the admission of evidence of Samra’s gang
affiliation was in keeping with his penalty-phase strategy to present Samra as easilyinfluenced and led into committing the crime by Duke. Bell arrived at this strategy
only after conducting a thorough investigation and realizing that he had no evidence
that Samra suffered from a mental defect. For the reasons stated in the previous
section, the ACCA’s determination that Bell’s strategy did not deprive Samra of his
Sixth Amendment rights is not contrary to clearly established Supreme Court
precedent, and habeas relief is not warranted on this ground.
Samra’s claim that the cumulative effect of the previous
ineffective assistance of trial counsel claims prejudiced
Page 85 of 110
Samra contends that the cumulative effect of the three previously-stated
unmeritorious claims “deprived him of a fair sentencing proceeding.” In denying this
claim, the ACCA noted that there was no support in Strickland that requires a
cumulative analysis of multiple non-meritorious claims of ineffective assistance of
counsel. The ACCA further noted that “if we were to evaluate the cumulative effect
of the instances of alleged ineffective assistance of counsel, we would find that
Samra’s substantial rights had not been injuriously affected, as we have found no error
in the instances argued in this petition.” (C.R. Vol. 49 at 129.) Samra has not
demonstrated that the ACCA’s adjudication of this issue is contrary to, or an
unreasonable application of, Strickland. Therefore, the “cumulative effects” claim
is due to be denied.
Samra’s claim that he was deprived of effective assistance of
appellate counsel when Bell failed to raise the argument on
direct appeal that due process required the prosecutor to give
advance notice of the statutory aggravating factor that made
him eligible for the death penalty
Samra argues that Bell’s failure to raise on direct appeal the claim that “he was
entitled to pre-trial (or at least pre-sentencing hearing) notice of the statutory
aggravating circumstances that the state would be relying on in attempting to prove
his eligibility for the death penalty,” constitutes ineffective assistance.
Page 86 of 110
As an initial matter, although the Rule 32 Court never addressed this claim in
its order denying Rule 32 relief, the ACCA stated that it was “reluctant to hold that
this claim is procedurally barred because it is being raised for the first time on appeal”
and considered the merits of the claim anyway. (C.R. Vol. 49, at 112.) The ACCA’s
decision to consider the claim was appropriate because the record reveals that Samra
did plead this claim in his third amended Rule 32 Petition. (C.R. Vol. 42, at 159-60
(“In addition, in this case the petitioner’s sentence of death violates the due process
clause of the Fourteenth Amendment because the petitioner did not receive notice of
the actual statutory aggravating circumstances used at the sentencing phase, until after
he had already been convicted of capital murder.”)). Additionally, the Rule 32 Court
acknowledged the claim during a hearing held on September 25, 2002, and stated that
it would address the claim in its order granting or denying relief, although it never did.
(C.R. Vol. 42, at 160-61.)
Although the ACCA correctly held that the claim was not procedurally
defaulted, it nonetheless appears to have mischaracterized Samra’s claim. The ACCA
described the claim as follows: “[Samra] was entitled to have advance notice of the
statutory aggravating circumstances that the State intended to prove by including
those circumstances in the indictment.” (C.R. Vol. 49, at 112.) The ACCA then
Page 87 of 110
stated the following in rejecting this claim:
. . . Samra’s claim must fail. In June 2002—at almost the same time as
Samra filed his second amended Rule 32 petition—the United States
Supreme Court released Ring v. Arizona, 536 U.S. 584 (2002) and
Atkins v. Virginia, 536 U.S. 304 (2002)—two cases that dramatically
impacted death-penalty cases throughout the United States. In Ring, the
Court applied its earlier holding in Apprendi v. New Jersey, 530 U.S. 466
(2000), to death-penalty cases and held that “capital defendants . . . are
entitled to a jury determination on any fact on which the legislature
conditions an increase in their maximum punishment.” Ring, 536 U.S.
at 589. However, in subsequent cases, this Court determined that
neither Ring nor Apprendi modified prior Alabama caselaw, “which
holds that aggravating circumstances do not have to be alleged in the
indictment.” Stallworth v. State, 868 So. 2d 1128, 1186 (Ala. Crim. App.
2001) (opinion on return to remand). Thereafter, relying on Schriro v.
Summerlin, 542 U.S. 348, (2004), we held that the decision in Ring did
not apply retroactively to cases on collateral review; that is, to cases that
were already final at the time that Ring was announced. See, e.g., Hunt
v. State, 940 So. 2d 1041, 1057 (Ala. Crim. App. 2005). Thus, the
decision in Ring was not applicable in Samra’s case. Accordingly,
counsel cannot be ineffective for failing to raise a meritless claim. See,
e.g., Bearden v. State, 825 So. 2d 868, 872 (Ala. Crim. App. 2001).
Indeed, we note that the appeals stage of Samra’s case began in 1998 and
continued until 2000, when Samra’s conviction and sentence became
final—approximately two years before the decision in Ring was
announced. Counsel is not ineffective for failing to anticipate changes
in the law. See, e.g., Holladay v. State, 629 So. 2d 673, 685 (Ala. Crim.
App. 1992) (“It is clear that the constitutional guaranty of effective
counsel does not require a defense attorney who can foresee future
decisions.”). Therefore, no basis for relief exists regarding this claim.
(C.R. Vol. 49, at 112-13.)
Samra now asserts that his claim was not and is not based on Ring and that he
Page 88 of 110
is not arguing that his indictment is defective, but rather, that due process mandates
that he be provided with some form of pre-trial or pre-sentencing-hearing notice—in
the indictment or otherwise—of what the claimed aggravating factors were. See
Petitioner’s Traverse and Reply Brief, Doc. 41, at 35 (“This is not an argument about
a defective indictment, its an argument about notice to the defense prior to trial as to
what the defense will have to address and respond to at trial.”).
Because Samra contends that the ACCA misinterpreted his claim, this Court
must first satisfy itself that Samra presented the same constitutional claim to the Rule
32 courts that he is presenting here and is not impermissibly expanding his claim for
the first time before this Court. As explained by the Eleventh Circuit:
The Supreme Court has instructed us that if “the substance of a federal
habeas corpus claim [was] first . . . presented to the state courts,”
“despite variations in the . . . factual allegations urged in its support,”
the claim is exhausted. Picard v. Connor, 404 U.S. 270, 277–78, 92 S. Ct.
509, 30 L.Ed.2d 438 (1971).
Based on Supreme Court law, we have held that “courts should
exercise flexibility in determining whether defendants have met [the
exhaustion] requirement.” Cummings v. Dugger, 862 F.2d 1504, 1507
(11th Cir.1989); see also Henry v. Dept. of Corr., 197 F.3d 1361, 1367 (11th
Cir.1999) (“The exact presentation of the claims in the state and federal
courts may vary some.”). In other words, an issue is exhausted if “the
reasonable reader would understand [the] claim’s particular legal basis
and specific factual foundation” to be the same as it was presented in
state court. Kelley v. Sec’y for Dept. of Corr., 377 F.3d 1317, 1344–45 (11th
Page 89 of 110
Pope, 680 F.3d at 1286.
Considering this standard, the Court is satisfied that Samra exhausted this
claim. His brief before the ACCA argued that due process requires that a criminal
defendant be entitled to pre-trial notice—“via indictment or other means” (C.R. Vol.
42, at 158-59) (emphasis added)) of the charges against him, and he cites the same
Supreme Court decisions in support that he cites to this Court. It appears that the
ACCA, in focusing on the “defective indictment” argument, never addressed
Samra’s argument that some form of pre-sentencing hearing notice should have been
Because the state courts did not resolve the merits of the claim that Samra
adequately presented to them, § 2254(d)(1)’s requirement that the federal courts
defer to state court decisions that are not contrary to, or an unreasonable application
of, clearly established federal law, does not apply. Davis, 341 F.3d at 1313. Under
these circumstances, this Court’s review of the claim is de novo. See id.
Nonetheless, even under a de novo review, the cases Samra contends his claim
is based on—In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222 (1968), Cole v. Arkansas, 333
U.S. 196, 68 S. Ct. 514 (1948), Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074
(2002), and Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), do not help
Page 90 of 110
him. Taken together, these cases stand for the unremarkable position that a criminal
defendant is entitled to notice of the charges against him so that he may defend against
those charges. In re Ruffalo was a disbarment proceeding against an attorney accused
of soliciting clients. 390 U.S. at 545, 88 S. Ct. at 1223. The original charge
enumerated twelve distinct counts of barratry. Id. at 546, 88 S. Ct. at 1224. At the
hearing, however, a thirteenth count was added after the attorney had presented his
defense, and the state board sanctioned the attorney on the thirteenth count. Id. The
Supreme Court reversed, holding that the disbarred attorney’s procedural due process
rights had been violated when he was not given notice of the charges against him. Id.
at 551-52, 88 S. Ct. at 1226. The Court described the disbarment proceedings as
“adversary proceedings of a quasi-criminal nature,” and stated that the “charge must
be known before the proceedings commence. They become a trap when, after they
are underway, the charges are amended on the basis of testimony of the accused.” Id.
at 551, 88 S. Ct. at 1226.
In Cole, the defendants were found guilty at trial of violating section 2 of Act
193 of the Arkansas legislature for promoting an unlawful assemblage near a labor
dispute. 333 U.S. at 198, 68 S. Ct. at 515. The Arkansas Supreme Court affirmed the
conviction, finding that defendants violated only section 1 of the same act, which
Page 91 of 110
made it unlawful to use force or violence to prevent another person from engaging in
an unlawful vocation. Id. at 200, 68 S. Ct. at 516. The United States Supreme Court
overturned the conviction, finding that the defendants had been tried and convicted
on section 2, not section 1, and stated that “[n]o principle of procedural due process
is more clearly established than that notice of the specific charge, and a chance to be
heard in a trial of the issues raised by the charge, if desired, are among the
constitutional rights of every accused in a criminal proceeding in all courts, state or
federal.” Id. at 201, 68 S. Ct. at 517.
Finally, Gray was a capital habeas case in which the Supreme Court cited In re
Ruffalo and Cole for the proposition that “[a] defendant’s right to notice of the
charges against which he must defend is well established.” 518 U.S. at 167-68, 116 S.
Ct. at 2083. The Court in Gray found those cases inapplicable, however, because it
was dealing with the petitioner’s claim that he did not have notice of additional
evidence that the state planned to use to prove the charges at the sentencing phase, not
the charges the state brought against him. Id. at 168, 116 S. Ct. at 2083 (“We have
said that ‘the Due Process clause has little to say regarding the amount of discovery
which the parties must be afforded.’”)(citation omitted).
These cases do not aid Samra because the due process clause requires only fair
Page 92 of 110
notice of the charges. Such notice was given in this case. Samra was also on notice
that the State would be seeking the death penalty. Samra has presented no case
indicating that a defendant’s procedural due process rights are violated when the
prosecution does not reveal the specific statutory aggravating circumstances that will
be used to support the death penalty until the penalty phase of the trial. Because
Samra can cite to no case at the time of his direct appeal recognizing the doctrine he
now says Bell had a duty to raise, Bell could not have been ineffective for not raising
a novel claim that was not supported by existing law. See Engle v. Isaac, 456 U.S. 107,
134, 102 S. Ct. at 1575 (1982) (“[T]he Constitution guarantees criminal defendants
only a fair trial and a competent attorney. It does not insure that defense counsel will
recognize and raise every conceivable constitutional claim.”).
Nor should the Supreme Court’s decision in Jones have alerted Bell that he
should have raised this argument on direct appeal, contrary to Samra’s assertion.
Samra relies on Jones, in which the Supreme Court considered the relationship
between “elements” of a crime and “sentencing enhancements” under the federal
car jacking statute, see 526 U.S. at 243, 119 S. Ct. at 1224, as well as the Supreme
Court’s subsequent decision in Apprendi v. New Jersey, in which the Court explained
that when a fact (other than a prior conviction) increases a sentence beyond the
Page 93 of 110
maximum authorized statutory sentence, such fact must be submitted to a jury and
proven beyond a reasonable doubt, see 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63
(2000), to advance the following argument. According to Samra, because criminal
defendants have a procedural due process right to advance notice of the elements of
the crimes for which they are charged, and this advance notice must be provided via
indictment in federal prosecutions but, in state prosecutions, may be provided in other
ways, and the “elements” of a crime include any fact (other than a prior conviction)
that increases the maximum penalty for a crime, then the aggravating circumstances
set forth in Ala. Code § 13A-5-49 are “elements” of the crime under Alabama’s
capital sentencing scheme. As such, Samra insists he was entitled to pre-trial, or at
least pre-sentencing hearing, notice of the statutory aggravating circumstances that
the State would be relying on in attempting to prove his eligibility for the death
penalty. In Samra’s view, Bell was ineffective for failing to raise this argument, since
the Supreme Court granted certiorari in Jones one month before Bell filed Samra’s
notice of appeal. However, Samra ignores the fact that the Supreme Court in Jones
was interpreting the construction and constitutionality of the federal car jacking
statute and was certainly not establishing a rule that a criminal defendant in a state
capital case must be provided notice of the statutory aggravating factors for the death
Page 94 of 110
penalty such that he may prepare his defense accordingly. Bell simply cannot be
ineffective for failing to raise a novel claim that was not supported by existing law. See
Engle, 456 U.S. at 134, 120 S. Ct. at 1575.7 Because the Court finds that Bell’s
performance was not deficient, it need not reach the prejudice prong. For these
reasons, habeas relief is not warranted on this claim.
Samra’s claim that his death sentence violates the Eighth and
Fourteenth Amendments given that, after Roper was decided by the
Supreme Court, his co-defendant Duke had his death sentence
vacated due to his age
Samra’s final claim stems from the following facts. On September 27, 2007,
Samra filed his Successive Rule 32 Petition, arguing that because Duke’s degree of
culpability was greater than Samra’s, but Duke could not be sentenced to death due
to the Supreme Court’s decision in Roper, Samra’s death sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment and is excessive and
disproportionate. Samra contended that a decision by the Shelby County Circuit
Court granting a 2002 Rule 32 petition of LaSamuel Lee Gamble constituted “newly
Samra points out that the Second Circuit has “held that the logic of [Apprendi and
Ring] requires that statutory aggravating factors be alleged in the indictments in capital cases.”
Matthews v. United States, 622 F.3d 99, 102 (2d Cir. 2010). Notwithstanding the fact that Samra
claims not to be making a “defective indictment” argument, the rule announced by the Second
Circuit is only applicable to federal capital cases, not state capital cases, and it was not binding
precedent when Samra’s case was on direct appeal, nor is it now.
Page 95 of 110
discovered evidence” under Alabama Rule of Criminal Procedure 32.1(e)8 and
justified the filing of a successive petition. Gamble and his co-defendant, Marcus
Presley, had both received death sentences following a capital murder conviction.
Gamble was more than 18 years old and Presley was 16 years old at the time they
committed their capital murder. Based on the 2005 decision in Roper holding that it
was unconstitutional to impose the death penalty on a criminal defendant who was less
Rule 32.1(e) allows a petition to be filed on the ground that:
Newly discovered material facts exist which require that the conviction or
sentence be vacated by the court, because:
(1) The facts relied upon were not known by the petitioner or the
petitioner’s counsel at the time of trial or sentencing or in time to file a
posttrial motion pursuant to Rule 24, or in time to be included in any
previous collateral proceeding and could not have been discovered by any
of those times through the exercise of reasonable diligence;
(2) The facts are not merely cumulative to other facts that were known;
(3) The facts do not merely amount to impeachment evidence;
(4) If the facts had been known at the time of trial or of sentencing, the
result probably would have been different; and
(5) The facts establish that the petitioner is innocent of the crime for
which the petitioner was convicted or should not have received the
sentence that the petitioner received.
Ala. R. Crim. P. 32.1(e).
Page 96 of 110
than 18 years of age at the time of the crime, the Shelby County Circuit Court vacated
Presley’s death sentence and sentenced him to life without the possibility of parole.
Gamble requested in his Rule 32 petition that his death sentence likewise be vacated,
arguing that Presley, who was the triggerman, was more culpable than he. The Shelby
County Circuit Court granted Gamble’s Rule 32 petition, vacated his death sentence,
and sentenced him to life without the possibility of parole. Samra thus contended in
his Successive Rule 32 Petition that, like Gamble, his death sentence should be
vacated. However, by the time the Rule 32 Court issued its order denying Samra’s
Successive Rule 32 Petition, the ACCA had reversed the Shelby County Circuit Court
in Gamble’s Rule 32 proceeding and reinstated Gamble’s death sentence. See Gamble
v. State, 63 So. 3d 707 (Ala. Crim. App. 2010). The Rule 32 Court summarily denied
Samra’s successive petition, holding that it was precluded from considering Samra’s
claim pursuant to Alabama Rules of Criminal Procedure 32.1(e) and 32.2(b)9 and (c),10
and in the alternative, that the claim failed on the merits.
Rule 32.2(b) provides that a successive petition based on different grounds from the
initial petition must be denied unless the petitioner shows either that 1) the court was without
jurisdiction to render a judgment or impose a sentence or that 2) good cause exists why the new
grounds were not known or could not have been ascertained through reasonable diligence when
the first petition was heard and that failure to entertain the petition will result in a miscarriage of
justice. Ala. R. Crim. P. 32.2(b).
Rule 32.2(c) sets out the various limitations periods in which a petitioner must file a
post-conviction petition. Ala. R. Crim. P. 32.2(c).
Page 97 of 110
In affirming the Rule 32 Court’s decision, the ACCA first quoted extensively
from the Rule 32 Court’s order, as follows:
The present Petition is a successive petition within the meaning
of Rule 32.2 of the Alabama Rules of Criminal Procedure. Samra makes
two interrelated claims. He first claims that his death sentence is in
violation of the 8th Amendment to the Constitution of the United States
prohibiting the imposition of cruel and unusual punishment. The second
claim is that a ruling by [a circuit judge] in another circuit court case
would constitute a newly discovered material fact which would require
the Court to vacate his death sentence to avoid a manifest injustice.
[The previous circuit judge] had issued a ruling in an unrelated
case setting aside a sentence of death of a defendant where a more
culpable co-defendant’s death sentence had been commuted to “Life
without Parole.” The co-defendant had been less than seventeen years
of age when the offense was committed and his sentence was reduced as
a result of the decision of the United States Supreme Court in Roper v.
Simmons, 543 U.S. 551 (2005). [The previous circuit judge] found the
death sentence of the co-defendant disproportional where a more
culpable co-defendant was sentenced to “Life without Parole.” The
Alabama Court of Criminal Appeals affirmed the trial court’s finding of
ineffective assistance of counsel during the sentencing phase but
declined to recognize a claim that a death sentence should be set aside if
not proportional with a sentence given to a co-defendant. Gamble v.
State, 63 So. 2d 707 (Ala. Crim. App. 2010).
In the present case, Samra is sentenced to death while a younger
co-defendant’s sentence was reduced by the application of the decision
The State has responded by asserting the applicable procedural
bars as well as arguing the facts themselves justify the sentence of death.
Samra had an active role in a [sic] multiple slayings . . . .
Page 98 of 110
The Court finds that Samra’s successive petition is procedurally
barred from consideration.
A ruling by the trial court in an unrelated
matter does not constitute “a newly discovered material
fact” within the meaning of Rule 32.1(e).
Even if such a ruling could be construed as a
fact it could not meet the requirements of Rule 32.1(e)(1)
Even assuming somehow somewhere a ruling
might be found which could be construed as a fact that met
the requirements of Rule 32.1(e), it would have to comply
with Rule 32.2(c) and in this case the further limitation
imposed by 32.2(b) for successive petitions. The present
petition does not.
The present case overcomes none of the above procedural bars.
In addition, as previously noted the Alabama Court of Criminal Appeals
rejected the proportionality in sentence argument upon which Samra
now seeks to rely. Gamble v. State, 63 So. 2d 707 (Ala. Crim. App.
For the foregoing reasons the Petition is summarily DENIED.
(C.R. Vol. 49, at 141-43 (quoting Vol. 49, at 136-37.))
The ACCA then went on to quote its opinion in Gamble extensively, effectively
adopting its reasoning in that case as its own. The court first noted that in Gamble,
it discussed whether a circuit court had the authority to conduct a proportionality
Page 99 of 110
review of a defendant’s sentence on a Rule 32 petition and determined that it did not
because, pursuant to the Alabama Supreme Court’s decision in Ex parte Thomas, 460
So. 2d 216 (Ala. 1984), a proportionality review is conducted by an appellate court
and not a trial court.11 The ACCA then noted that in Gamble, it determined that the
circuit court’s setting aside of Gamble’s death sentence based on his co-defendant
being re-sentenced to life without parole violated the principle that a defendant has
a constitutional right to have an individualized sentencing determination made.
See Ex parte Thomas, 460 So. 2d at 226-67 (“the disproportionality question involving
consideration of co-defendant sentences is something to be addressed by the appellate courts
instead of at the trial level”) (citing Coulter v. State, 438 So. 2d 336 (Ala. Crim. App. 1982) and
Miller v. Florida, 459 U.S. 1158 (1983) (Marshall, J., dissenting from the denial of certiorari)). As
explained by Justice Marshall in Miller:
An appellate court, in the performance of the reviewing function which
this Court has held indispensable to a constitutionally acceptable capital
punishment scheme, must examine the sentences imposed in all capital cases in
the jurisdiction in order “to ensure that similar results are reached in similar
cases.”  The sentencer has a different role. The sentencer’s duty is to determine
in the first instance whether a death sentence is warranted for a particular
defendant. That determination can only be made on the basis of the evidence that
the judge has heard with respect to that defendant, and, under the Florida
procedure, on the recommendation made by the jury that heard that evidence. A
capital sentencing determination cannot properly be made on the basis of evidence
presented in another trial or a recommendation made by another jury.
459 U.S. at 1161-62 (Marshall, J., dissenting from denial of certiorari)(internal quotation marks
and citations omitted).
Page 100 of 110
Third, the ACCA noted that in Gamble, it determined that there is no constitutional
right to have a proportionality review in death-penalty cases, and in fact, the Supreme
Court has specifically rejected a claim that a capital defendant can prove an Eighth
Amendment violation by showing that his co-defendant’s death sentence was vacated.
The ACCA ultimately found that because it had rejected in Gamble the same
argument Samra was making, i.e., that a defendant’s death sentence could be vacated
because it was found to be disproportionate in relation to his co-defendant’s sentence,
Samra’s claim was meritless. The ACCA concluded its opinion by stating:
Because Samra’s claims do not have merit, they do not impugn the
trial court’s jurisdiction. Thus, the circuit court correctly applied the
preclusive bar of Rule 32.2(c) because the petition was untimely. The
circuit court also correctly applied the preclusive bar of Rule 32.2(b),
because the claims were raised in a successive petition and were not
jurisdictional claims. Because the petitioner’s claims were without merit
and were precluded, summary disposition was appropriate.
(C.R. Vol. 49 at 149.)
Samra now raises the same Eighth Amendment claim12 before this Court, and
Samra also adds a Fourteenth Amendment claim for the first time before this Court.
Because Samra did not raise a Fourteenth Amendment claim in his Successive Rule 32 Petition
nor did he raise such a claim on appeal, this Court is precluded from granting relief on this claim.
Any attempt by Samra to return to state court to exhaust this unexhausted claim would be barred
under Alabama’s procedural rules. It is too late for Samra to raise this claim on direct appeal; see
Ala. R. Crim. P. 4(a)(1); a third Rule 32 petition would be successive; see Ala. R. Crim. P. 32.2(b);
and this claim would also be subject to other procedural bars in Rule 32, see Ala. R. Crim. P.
32.2(a)(3)-(5). As such, this claim is procedurally defaulted. “It is well established that when a
petitioner has failed to exhaust his claim by failing to fairly present it to the state courts and the
Page 101 of 110
because the ACCA not only ruled that the claim was barred by state procedural rules
but also denied the claim on its merits, this Court must determine whether the
ACCA’s merits determination “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding” pursuant to § 2254(d)(1)-(2). See Ward,
592 F.3d 1144 (in order for a state court’s procedural ruling to constitute an
independent and adequate state rule of decision and thus preclude federal court
review, “the last state court rendering a judgment in the case must clearly and
expressly state that it is relying on state procedural rules to resolve the federal claim
without reaching the merits of that claim”) (internal quotation marks and citation
state court remedy is no longer available, the failure constitutes a procedural bar.” McNair v.
Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005). Samra is not entitled to federal habeas review of
this claim unless he shows cause for and prejudice from his failure to raise the claim, or that a
fundamental miscarriage of justice would result from this Court’s failure to review the merits of
the claim. Samra makes no showing of cause and prejudice, or a miscarriage of justice, in order
to excuse the default. In his reply brief, Samra indicates that his focus is on the Eighth
Amendment violation, and states that he “only refers to the Fourteenth Amendment in its
function incorporating the Eighth Amendment to the states.” (Petitioner’s Traverse and Reply
Brief, Doc. 41 at 41 n.4). This statement is not sufficient to excuse the procedural default.
Accordingly, this Court is precluded from granting habeas relief on Samra’s claim that his death
sentence violates the Fourteenth Amendment to the U.S. Constitution.
Page 102 of 110
To that end, Samra contends that the ACCA’s decision affirming the death
penalty imposed upon him was an unreasonable application of the principle of
proportionality in criminal sentencing pursuant to Kennedy v. Louisiana, 554 U.S. 407,
128 S. Ct. 2641 (2008); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002);
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991); Gregg v. Georgia, 428 U.S.
153, 96 S. Ct. 2909 (1976); Miller v. Alabama, 132 S. Ct. 2455 (2012); and Roper, supra.
As an initial matter, none of the cases cited by Samra holds that a capital
murder defendant has an Eighth Amendment right to have his death sentence vacated
solely because his co-defendant received a lesser sentence than the death penalty. See
Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003) (indicating that a
petitioner must cite to Supreme Court precedent that confronts nearly identical facts
but reaches the opposite conclusion in order to show that a state court decisions was
contrary to law). To the contrary, and as discussed by the ACCA, such a bright-line
rule would violate Supreme Court precedent mandating that a defendant is entitled
to an individualized sentencing determination. See Lockett v. Ohio, 438 U.S. 586, 605,
Because the Court will engage in AEDPA review under § 2254(d), it need not address
Samra’s argument that this Court should review his claim on the merits because the ACCA
erroneously ruled that his Successive Petition was untimely under Ala. R. Crim. P. 32.2(c).
Page 103 of 110
98 S. Ct. 2954, 2965 (1978) (“Given that the imposition of death by public authority
is so profoundly different from all other penalties, we cannot avoid the conclusion
that an individualized decision is essential in capital cases.”); Williams v. Illinois, 399
U.S. 235, 243, 90 S. Ct. 2018, 2023 (1970) (“[T]here is no requirement that two
persons convicted of the same offense receive identical sentences.”); Zant v.
Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733, 2743-44 (1983) (“What is important .
. . is an individualized determination on the basis of the character of the individual and
the circumstances of the crime.”).
Thus, while “proportionality” in criminal sentence has been described by the
Supreme Court as “an abstract evaluation of the appropriateness of a sentence for a
particular crime,” Pulley v. Harris, 465 U.S. 37, 42-43, 104 S. Ct. 871, 875 (1984)
(internal citations omitted), Samra is not arguing that his sentence is
“disproportionate to the crime in the traditional sense.” Id. at 43; 104 S. Ct. at 875.
In other words, he does not deny that he killed four people in the course of one
scheme or course of conduct, the penalty for which can be death under Alabama law.
The type of proportionality review Samra is seeking is “of a different sort,” see id.,
104 S. Ct. at 876,—a consideration of the appropriateness of his sentence in light of
his co-defendant Duke’s lesser sentence. However, and as stated by the ACCA, the
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Supreme Court has held that “[c]omparative proportionality review is not
constitutionally required in every state court death sentence review.” Id. at 50-51,
104 S. Ct. at 879 (considering whether the Eighth and Fourteenth Amendments
require a state appellate court, before it affirms a death sentence, to compare the
sentence in the case before it with the penalties imposed in similar cases if requested
to do so by the prisoner, and holding that they do not).14 Moreover, as also stated by
the ACCA, the Supreme Court has rejected a defendant’s attempt to “prove a[n]
[Eighth Amendment] violation by demonstrating that other defendants who may be
similarly situated did not receive the death penalty.” McCleskey v. Kemp, 481 U.S.
279, 306-07, 107 S. Ct. 1756, 1775 (1987) (emphasis in original).15
Alabama requires a proportionality review to be conducted by the appellate court on
every death sentence, in which the court compares the capital defendant’s sentence to the
sentences imposed in other similar capital cases in the jurisdiction. See Ala. Code § 15A-553(b)(3) (1975).
In McCleskey, the defendant argued that his death sentence was disproportionate to the
sentences in other murder cases. 481 U.S. at 306, 107 S. Ct. at 1774. The Supreme Court held
that, on the one hand, he could not base a constitutional claim on an argument that his case
differs from other cases in which defendants did receive the death penalty because the Georgia
Supreme Court found that his death sentence was not disproportionate to other death sentences
imposed in the state, and such proportionality review is not even constitutionally required. Id.,
107 S. Ct. at 1774-75 (citing Pulley, 465 U.S. at 50-51, 104 S. Ct. at 879). The Court then held
that, on the other hand, the only way the defendant could show that his sentence was
disproportionate to similarly situated defendants who did not receive the death penalty would be
by demonstrating that Georgia’s capital punishment system operates in an arbitrary and
capricious manner. Id. at 306-07, 107 S. Ct. at 1775. The Court stated that it had previously
rejected a prisoner’s claim that the opportunities for discretion and leniency inherent in the
processing of a murder case rendered the capital sentence imposed arbitrary and capricious. Id.
at 307, 107 S. Ct. at 1775 (citing Gregg, 428 U.S. at 199, 96 S. Ct. at 2937). Because the
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This rule is especially appropriate in this case, considering the fact that the
reason that Mark Duke did not receive the death penalty had nothing to do with the
circumstances of Duke and Samra’s crime or the presence or absence of aggravating
or mitigating factors. The basis was purely legal. Despite the fact that a jury analyzed
the facts and considered the aggravating and mitigating circumstances and
recommended that Duke be sentenced to death, and the trial court imposed such a
sentence, the court later concluded as a matter of law that Duke was ineligible for the
death penalty. Duke’s sentence reduction has no connection to the nature or
circumstances of the crime or to Samra’s character or record. Under Lockett, Duke’s
sentence reduction is irrelevant as a mitigating circumstance in Samra’s case. See 438
U.S. at 605, 98 S. Ct. at 2965.
Under the Eighth and Fourteenth Amendments, Samra was entitled to receive
an individualized sentencing determination, and the record reflects that he received
that. In its sentencing order, the trial court stated the following in support of its
finding that the capital offense was especially heinous, atrocious, or cruel when
compared to other capital offenses:
defendant’s death sentence was imposed under Georgia sentencing procedures that focused
discretion “on the particularized nature of the crime and the particularized characteristics of the
individual defendant,” the Court held that it was not disproportionate “within any recognized
meaning under the Eighth Amendment.” Id. (internal quotation marks omitted).
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WHEREAS, the Court finds that the evidence at trial was that
[Samra], along with one or more co-Defendants planned the murder of
Randy Gerald Duke and [Samra] chose to carry out the murder at a time
when it would also be necessary, in order [sic] cover up the murder of
Randy Gerald Duke, to murder Dedra Mims Hunt, Chelisa Nicole Hunt
and Chelsea Marie Hunt. [Samra] carried out the plans and in doing so
obtained weapons including two (2) handguns. Defendants then went to
the home of Randy Gerald Duke and assisted co-Defendant in the
murder of Randy Gerald Duke. [Samra] shot Dedra Mims Hunt in the
face which shot did not immediately kill Dedra Mims Hunt and then
proceeded to chase Dedra Mims Hunts and the two minor victims
upstairs, at which point Dedra Mims Hunt, Chelisa Nicole Hunt and
Chelsea Marie Hunt were all killed by means of being cut with a knife.
The evidence showed that [Samra] actually cut the throat of at least one
of the minor children and was actively involved in killing all victims in
After the murders took place, [Samra], along with co-Defendants
then disposed of the various weapons. [Samra] and/or co-Defendants,
after being arrested assisted the police in obtaining the various weapons.
WHEREAS, the Court hereby FINDS that the offense was
particularly heinous, atrocious and cruel when compared to other capital
offenses. Evidence showed at trial that the victims in this case were
killed in a very cruel and heinous manner. The minor children’s throats
were actually cut and according to testimony of the medical examiner,
they drowned in their own blood. The photographs and other
demonstrative evidence in this case leads to one and only one conclusion,
that the manner in which the victims were killed was much more heinous
and atrocious and cruel than would be necessary in any killing.
This case stands out as particularly heinous, atrocious and cruel
when it is considered that at least one victim, according to the admission
of Defendant, begged not to be killed. All of the victims died very painful
and brutal deaths. The victims apparently struggled for life and breath
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and that very struggle caused one or more of the victims to drown in their
(C.R. Vol. 49, at 5.) The trial court found that this aggravating circumstance
“substantially outweigh[ed]” the mitigating circumstances and accordingly sentenced
Samra to death.
In affirming Samra’s conviction and death sentence, the ACCA concluded that
“[t]he sentencing order shows that the trial court weighed the aggravating and
mitigating circumstances and correctly sentenced [Samra] to death.” Samra, 771 So.
2d at 1121. In addition, the ACCA stated as follows:
Section 13A-5-53(b)(2) requires us to weigh the aggravating and
mitigating circumstances independently to determine the propriety of the
appellant’s death sentence. After independently weighing the
aggravating and mitigating circumstances, we find that the death
sentence is appropriate.
As required by § 13A-5-53(b)(3), we must determine whether the
appellant’s sentence was disproportionate or excessive when compared
to the penalties imposed in similar cases. The appellant killed four
people pursuant to one scheme or course of conduct. Similar crimes are
being punished by death throughout this state. Taylor v. State, 666 So.
2d 71 (Ala. Crim. App. 1994), aff’d, 666 So. 2d 73 (Ala. 1995); Holladay
v. State, 549 So. 2d 122 (Ala. Crim. App. 1988), aff’d, 549 So. 2d 135
(Ala. 1989); Siebert v. State, 555 So. 2d 772 (Ala. Crim. App. 1989), aff’d,
555 So. 2d 780 (Ala. 1989); Peoples v. State, 510 So. 2d 554 (Ala. Crim.
App. 1986), aff’d, 510 So. 2d 574 (Ala. 1987). Thus, we find that the
sentence of death was neither disproportionate nor excessive.
Id. Because the ACCA held that the trial court’s finding regarding the aggravating
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and mitigating circumstances was supported by the evidence and because the court
found that Samra’s death sentence was neither excessive nor disproportionate to the
penalty imposed in similar cases, the court affirmed his death sentence. Id. Nothing
has happened in Samra’s case that alters the state courts’ finding that his death
sentence is proportionate to his crime.
In light of his role in the crime and his culpability for the murder of the four
victims, Samra’s death sentence is proportionate to his crime. Overwhelming
evidence established that Samra was a full and active participant in the commission
of the crime and that he acted with a clear intent to kill the victims. According to his
own statement, Samra shot Dedra Hunt in the face. That bullet entered her cheek,
knocking out some of her teeth on both sides of her mouth and grazing the top of her
tongue. Despite that gruesome injury, Ms. Hunt was able to flee up the stairs with
her daughters, where she and one of her daughters sought shelter in an upstairs
bathroom. Mark Duke kicked in the bathroom door, shot and killed Ms. Hunt, and
then executed her little girl, by slicing her throat. After the two killings took place in
the bathroom, Samra took it upon himself to kill Ms. Hunt’s other little girl by slicing
her throat while Duke held her down. In sum, the evidence showing that Samra was
a full and active participant in the crime, was prepared to kill, intended to kill, was
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present with the intent to render aid and support to his co-defendant, Mark Duke, in
killing the victims, and did, in fact, aid and support Duke in killing them, is
overwhelming. Plainly, even if this Court could now re-weigh the aggravating and
mitigating circumstances and take Duke’s sentence of life without parole into
consideration in doing so, which it cannot do, the balance of the aggravating and
mitigating circumstances would not change. Nor can it be said that Samra’s sentence
of death suddenly has become “disproportionate” simply because Duke was
re-sentenced to life without parole. Habeas relief is not warranted on this claim.
For the foregoing reasons, Samra’s petition for habeas relief is due to be denied.
A final judgment will be entered.
Done this 5th day of September 2014.
L. Scott Coogler
United States District Judge
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